STJ reopens discussion on setting fees for loss of suit by equity
By Bruna Ramos Figurelli
In the session of December 13, the Third Panel of the Superior Court of Justice (STJ) decided to allocate to the Special Court two special appeals (REsp nº 1824564/RS and REsp nº 1743330/AM) that deal with the possibility of setting fees for equity , when it comes to discussions involving millionaire amounts.
The issue, as we reported in a previous publication, was judged by the Court in March 2022: upon concluding the judgment of Issue 1,076, it was decided, by majority, that it was impossible to set fees for losing the suit, even in cases where the amount of conviction or the economic benefit were high, reinforcing the mandatory observance of the percentages provided for in §§ 2 and 3 of art. 85, of the Code of Civil Procedure (CPC) (10 to 20%).
Endorsing, thus, the application of the rule of § 8, of art. 85, of the CPC, it remains confirmed that the arbitration of fees for equity can only occur when the economic benefit obtained by the winner is inestimable or negligible, or the value of the claim is very low.
Now, contrary to what was decided on that occasion, however, the ministers of the Third Panel, by majority, decided that it would be the case to review the issue, which, even with the definition of Theme 1.076, continues to be repeatedly submitted to the Court, mainly because, it is important to say, many courts and judges insist on disregarding the orientation established by the STJ, according to the systematic of repetitive appeals.
The allocation of the two appeals to the Special Court opens a way to define, in this case, the so-called distinguishing, which would allow the non-application of the said statement (albeit binding) to the concrete situations under analysis.
In any case, the ministers’ inclination to reconsider the issue from the perspective of the alleged “disproportionality” that, in high-profile cases, the arbitration of fees according to the legal percentages could cause in the condemnatory levels is clear.
The question (and concern) that remains, however, is: how to maintain this discussion without harming legal certainty and legality? At the end of the day, we have, on the one hand, a ruling procedural norm that clearly and explicitly defined the hypotheses for establishing loss of suit by equity and, on the other hand, in practice, what we are witnessing is a constant movement towards alteration and indiscriminate flexibility of the norm, resulting in a scenario of serious general insecurity.
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