The Supreme Court determined when an underpaid court fee cannot be recovered after the decision in the case

The Supreme Court, sitting as the United Chamber of the Commercial Cassation Court, considered a cassation appeal in a case regarding the adoption of an additional court decision to recover the underpaid amount of the court fee. The court had to determine whether the court, after the case review was completed and the decision entered into legal force, could recover from the plaintiff by an additional decision the amount of the court fee that was underpaid at the time of filing the claim.

Case circumstances

A limited liability company filed a claim with the Commercial Court of Cherkasy Region for the recovery of property from unlawful possession by another party.

By the decision of the Commercial Court of Cherkasy Region dated September 16, 2021, the claim was denied.

The plaintiff appealed this decision, but by the ruling of the Northern Appellate Commercial Court dated November 11, 2021, the appeal was left without movement due to non-payment of the full amount of the court fee. The appellate court established that when filing the claim in the first instance court, the plaintiff incorrectly classified the nature of the claims as non-property, although the claim was of a property nature. Therefore, the court determined that when filing the appeal, the applicant should have paid the court fee based on the rate established for property claims.

After the plaintiff failed to correct these deficiencies within the prescribed period, by the ruling dated December 15, 2021, the appellate court returned the appeal without consideration.

Subsequently, by the ruling of the Commercial Court of Cherkasy Region dated February 7, 2023, the proceedings in the case were closed.

After the case review was completed, an individual entrepreneur who was one of the defendants applied to the local commercial court with a motion to adopt an additional decision. In the motion, he requested to recover from the plaintiff to the State Budget of Ukraine the underpaid court fee, referring to the fact that at the time of opening the proceedings, the first instance court did not verify the correctness of the claim price determination and the payment of the court fee.

The plaintiff objected to the satisfaction of this motion. He stated that the issue of the court fee had already been resolved at the time of opening the proceedings, and the motion for adopting an additional decision was filed after the expiration of the procedural deadline and was effectively aimed at reviewing the final court decision.

Decisions of the courts of first and appellate instances

The Commercial Court of Cherkasy Region, by an additional decision dated January 16, 2025, satisfied the defendant's motion and recovered from the plaintiff to the State Budget of Ukraine the underpaid amount of the court fee.

The court reasoned that when filing the claim, the plaintiff incorrectly determined the nature of the claims and paid a smaller court fee than provided by the Law of Ukraine "On Court Fee." According to the local commercial court, this circumstance remained unresolved when the main decision was made and therefore could be remedied by adopting an additional decision in accordance with Article 244 of the Commercial Procedural Code of Ukraine.

By the ruling dated May 14, 2025, the Northern Appellate Commercial Court left the additional decision unchanged, agreeing with the conclusions of the first instance court regarding the possibility of recovering the underpaid court fee after the case review was completed.

Legal conclusions of the Supreme Court

Reviewing case No. 925/1421/20, the Supreme Court sitting as the United Chamber of the Commercial Cassation Court noted that the key issue of the dispute is the possibility of recovering to the State Budget of Ukraine the unpaid or underpaid court fee after the case review is completed by adopting an additional court decision.

First, the Supreme Court referred to the constitutional principles of access to justice and the obligation to pay mandatory fees. The court noted that Article 55 of the Constitution of Ukraine guarantees everyone the right to judicial protection, while Article 67 imposes on everyone the duty to pay taxes and fees in the manner and amounts established by law.

Analyzing the provisions of the Law of Ukraine "On Court Fee," the Supreme Court emphasized that the court fee is a mandatory payment levied for submitting procedural documents to the court and for certain procedural actions performed by the court. At the same time, it is the court's duty before opening proceedings or accepting the relevant application or appeal to verify the proper payment of the court fee and the correctness of its amount.

The court stressed that procedural legislation imposes on the court the obligation to carry out such verification precisely at the stage of deciding on the opening of proceedings or accepting the procedural document for consideration. If the application is submitted without complying with the court fee payment requirements, the court must apply the procedural mechanisms provided by the Commercial Procedural Code, in particular, leave the application without movement, set a deadline for correcting deficiencies, or return it to the applicant.

The Supreme Court noted that these procedural mechanisms are preventive in nature and aimed at ensuring the correct determination and timely payment of the court fee before the substantive consideration of the case begins.

Examining the provisions of Article 244 of the Commercial Procedural Code of Ukraine, the Supreme Court concluded that an additional decision is a special procedural instrument that can be adopted only in cases explicitly provided by law. In particular, an additional decision is allowed if the court did not resolve a separate claim, did not specify the exact amount of money or property to be recovered or transferred, or did not resolve the issue of court costs.

At the same time, the Supreme Court emphasized that the institution of an additional decision is not intended to correct procedural errors made by the court when opening proceedings, nor can it be used as a mechanism for re-evaluating the correctness of the court fee amount after the court review is completed.

The United Chamber stated that the issue of proper payment of the court fee must be resolved before the substantive consideration of the case begins. If the court opened proceedings, accepted the application for consideration, and reviewed the dispute without applying the procedural consequences provided by law for improper payment of the court fee, such a procedural error by the court itself does not create legal grounds for further recovery of the underpaid amount by adopting an additional decision.

The Supreme Court also drew attention to the principle of legal certainty, which is part of the rule of law principle. The court noted that after the court review is completed, a party to the case should be able to rely on the finality of the procedural consequences of the case review. A court error in determining the proper amount of the court fee cannot be imposed on the party after the court decision has entered into legal force.

According to the Supreme Court, the opposite approach would create a situation of legal uncertainty, where significant sums could be recovered long after the case is closed due only to changes in judicial practice or re-evaluation of the correctness of previous procedural actions by the court.

Moreover, the court emphasized that procedural consequences of a court error cannot be shifted onto a party acting within the procedural decisions made by the court itself.

Considering the above, the Supreme Court concluded that it is necessary to depart from the previously formed legal position set out, in particular, in rulings dated August 1, 2024, in case No. 910/5740/21, October 14, 2024, in case No. 910/13167/22, and May 29, 2025, in case No. 916/1101/21, which allowed the possibility of recovering unpaid or underpaid court fees by adopting an additional decision after the case review was completed.

The United Chamber formulated a new legal conclusion according to which Article 244 of the Commercial Procedural Code of Ukraine does not grant the court authority, after the case review is completed and a final court decision is made, to recover to the State Budget of Ukraine an unpaid or underpaid court fee for submitting a procedural document if the court did not timely apply the procedural control mechanisms provided by law for its payment.

As a result of the cassation review, the Supreme Court satisfied the cassation appeal, canceled the additional decision of the Commercial Court of Cherkasy Region and the ruling of the Northern Appellate Commercial Court, and denied the motion to adopt an additional decision.

The Supreme Court concluded that after the case review is completed and a final court decision is made, the court has no authority to recover to the State Budget of Ukraine an unpaid or underpaid court fee by an additional decision if the issue of its proper payment was not resolved at the stage of opening proceedings or accepting the relevant procedural document.