The procedural indemnity in Belgium: who pays the winner's lawyer?

Anyone who loses a lawsuit pays more than just their own lawyer. As a rule, they must also contribute to the winning party’s legal fees through the procedural indemnity (rechtsplegingsvergoeding / indemnité de procédure). That amount can weigh heavily on your decision to litigate or to settle. This article explains what the procedural indemnity in Belgium is, how it is calculated, when the judge may depart from it and what it means on appeal, in summary proceedings and in criminal cases.

What is the procedural indemnity?

The procedural indemnity is a flat-rate contribution towards the costs and fees of the lawyer of the successful party (Article 1022 of the Belgian Judicial Code, Gerechtelijk Wetboek / Code judiciaire). The system was introduced by the Act of 21 April 2007 on the recoverability of lawyers’ fees and costs. The judge orders the losing party to pay it, together with the other legal costs (Article 1017 of the Judicial Code).

It is expressly not a full reimbursement. The difference between the flat-rate indemnity and the fees your lawyer actually charges generally remains your responsibility. Moreover, the indemnity is awarded to the party itself, not to its lawyer.

How is the procedural indemnity calculated?

Claims that can be valued in money

The amounts are set by the Royal Decree of 26 October 2007 and are linked to the consumer price index, so they are adjusted periodically. They depend on the value of the claim, which is divided into brackets. Each bracket has a base amount, with a minimum and a maximum. The higher the financial stakes of the dispute, the higher the indemnity.

Claims that cannot be valued in money

For claims that cannot be valued in money, such as a claim seeking only the vacating of premises or the cessation of a nuisance without damages, a separate base amount applies. A minimum and a maximum also apply to these claims.

Per party and per procedural relationship

The indemnity is set per procedural relationship and for each party assisted by a lawyer. If the same lawyer assists several parties in the same procedural relationship, the indemnity is shared between them (Court of Cassation, 6 February 2024). In principle, the judge awards the base amount unless a party asks for a departure from it.

When can the judge depart from the base amount?

At the request of a party, the judge may reduce or increase the amount, without going below the minimum or above the maximum. The judge must give specific reasons for that decision and takes into account:

• the financial capacity of the losing party, but only to reduce the amount;
• the complexity of the case;
• any contractual compensation agreed for the successful party;
• whether the situation is manifestly unreasonable.

The judge cannot depart from the base amount on their own initiative: a party must ask for it, in practice in its written submissions. If the losing party receives second-line legal aid (juridische tweedelijnsbijstand / aide juridique de deuxième ligne), the procedural indemnity is set at the minimum amount. The judge may depart from this only in a manifestly unreasonable situation, by a specifically reasoned decision.

Several winning parties

Where several winning parties are entitled to a procedural indemnity from one or more losing parties, the total may not exceed twice the maximum indemnity that the beneficiary with the highest entitlement can claim (Article 1022 of the Judicial Code; Court of Cassation, 26 April 2012). The judge divides that amount between them. Conversely, no party can be required to pay more than the procedural indemnity for the intervention of another party’s lawyer.

Partial success and other exceptions

If each party succeeds on some points, the judge may apportion the legal costs, including the procedural indemnity: each party then bears its own costs, or the judge divides them in the proportion he or she sets. The same option exists in disputes between spouses, legal or de facto cohabitants, ascendants, brothers and sisters or relatives by marriage in the same degree. In family matters, costs are therefore regularly apportioned.

Costs that a party has caused unnecessarily and through its own fault, including the procedural indemnity, are charged to that party, if necessary by the court of its own motion, even if it wins the case. In social security disputes before the labour court (arbeidsrechtbank / tribunal du travail), the public authority or social security institution in principle bears the costs of claims brought by or against socially insured persons, except where the claim is vexatious or reckless.

On appeal and in summary proceedings

A separate procedural indemnity is due for each instance. Anyone who wins at first instance but loses on appeal may therefore end up paying for both instances. The judge can also award a procedural indemnity in summary proceedings (kort geding / référé). Read our article on summary proceedings.

The procedural indemnity in criminal cases

If an injured person joins the proceedings as a civil party (burgerlijke partij / partie civile) and the defendant is convicted, the criminal court also orders the defendant and any parties with civil liability to pay a procedural indemnity to the civil party (Article 162bis of the Code of Criminal Procedure). If the civil party itself brought the defendant to court by direct summons (rechtstreekse dagvaarding / citation directe) and the defendant is acquitted, the civil party can conversely be ordered to pay an indemnity to the defendant. By contrast, if you are prosecuted by the public prosecutor and acquitted, you receive no procedural indemnity from the State.

These rules also apply before the police court (politierechtbank / tribunal de police), where the victim of a road accident often joins the proceedings as a civil party. Find out more about how the police court works.

The other legal costs

In addition to the procedural indemnity, legal costs include the court registration fee (rolrecht / droit de mise au rôle) for entering the case on the cause list, the fees of the bailiff (gerechtsdeurwaarder / huissier de justice) for the summons and service, the fees of a court-appointed expert and the contribution to the Fund for second-line legal aid. The party requesting an expert examination usually has to pay an advance on the expert’s costs. At the end of the proceedings, the judge in principle charges all these costs to the losing party.

When is the procedural indemnity paid?

The order to pay the procedural indemnity forms part of the judgment. Once an enforceable judgment has been served, the winning party can recover it together with the principal sum and the other costs, if necessary through a bailiff and by means of attachment. A final judgment given after both parties were heard is, as a rule, provisionally enforceable, even if an appeal is lodged, unless the judge decides otherwise (Article 1397 of the Judicial Code). Enforcement is, however, at the risk of the party pursuing it: if the judgment is overturned on appeal, the allocation of costs may still change.

Why the procedural indemnity affects your decision

The procedural indemnity belongs in every risk analysis. If you lose, it comes on top of your own legal fees, the principal sum, interest and the other legal costs. If you win, it usually covers only part of your costs, especially in complex cases. An amicable settlement can therefore sometimes be more advantageous than a case won in court.

Who pays your own lawyer?

Your own lawyer invoices fees according to the arrangements you agree, for example an hourly rate, a fixed fee or a combination. Legal expenses insurance can cover both your own legal fees and the procedural indemnity you have to pay to the other party, within the limits of the policy. Read our article on legal expenses insurance. If your income is limited, you can check with the Legal Aid Office (Bureau voor Juridische Bijstand / Bureau d’Aide Juridique) whether you are entitled to second-line legal aid.

Frequently asked questions

Can I avoid the procedural indemnity by settling out of court?

Yes. In a settlement agreement, the parties themselves agree who bears which costs. Often each party bears its own costs, but a different allocation is also possible.

Can I know the exact procedural indemnity in advance?

The base amount, the minimum and the maximum for the value of your claim are fixed and can be looked up in advance. The final amount depends on the outcome of the case and on any departure the judge allows. We calculate it for your case.

Do I have to pay if the other party had no lawyer?

The procedural indemnity is a contribution towards the costs of the winning party’s lawyer. If that party was not assisted by a lawyer, it is generally not due (Court of Cassation, 19 October 2023).

Am I entitled to a procedural indemnity if the police court acquits me?

Not from the State. If you were prosecuted by the public prosecutor, you bear your own legal fees, even if you are acquitted. Where a civil party brought you to court by direct summons and you are acquitted, however, that civil party can be ordered to pay you a procedural indemnity.

Novex Advocaten at your side

Before any proceedings, we make a realistic assessment of the costs and risks, discuss with you whether an amicable settlement makes more sense, and agree clear terms on our fees. See also our article on the cost of a lawyer in traffic cases.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.