At the end of 2018, the Special Court of the Superior Court of Justice (STJ) completed the trial on the nature of article 1.015 of the Civil Procedure Code (CPC), recognizing the mitigation of the legal type (Special Appeals No. 1.696.396 and No. 1.704.520, under the trial of multiple claims on the same point of law). The decision recognizes that, in exceptional cases, it is possible to file an interlocutory appeal against decisions not prescribed by article 1.015 of the CPC, whenever there is risk of uselessness of future trial of the deferred appeal.

Additionally, the 4th Panel of the STJ admitted the possibility of filing an interlocutory appeal against decisions which deal with statute of limitations (Special Appeal nº 1.778.237). According to Reporting Justice Luis Felipe Salomão, those decisions affect the merits of the lawsuit and are included in item II of article 1.015 of the CPC. The Reporting Justice also referred article 356 of the CPC, which establishes that it is possible to file an interlocutory appeal against summary judgment with partial adjudication on the merits.

Such decisions of the STJ should influence the State Courts in the judgment of admissibility of interlocutory appeals, which may generate an increase in admitted appeals.

The 2nd Section of the Superior Court of Justice (STJ), in Special Appeal No. 1.746.072, confirmed the understanding that attorney’s fees must follow the objective command of article 85, paragraph 2, of the Civil Procedure Code (CPC) (between 10% and 20% of the judgment value, of the economic gain or, if it is not possible to measure, of the updated claim value), to the detriment of the equitable criterion (paragraph 8), which must be applied only in a subsidiary manner, that is, when it is not possible to apply the general rule or when the claim is invaluable or minimal.

According to Justice Raul Araújo, whose understanding prevailed, the 2015 CPC established “three important interpretative vectors” that aim to grant “higher legal security and objectivity” to the matter under discussion.

The STJ’s decision may modify the understanding adopted by several courts, which in several lawsuits have been applying counsel’s fees using the equitable criterion in claims with values considered “exorbitant”. Hence, in the risk analysis of loss of suit and in the contingency of lawsuits in course, it is appropriate to consider the potential judgment regarding attorney’s fees considering the amounts involved in the lawsuit, even when the latter seem exorbitant.

*Contrary to the American rule, in Brazil the losing side ordinarily has to pay the winning side’s attorney’s fees.

On December 19th, 2018, the Special Court of the Superior Court of Justice (STJ) ruled the need for personal notification of the debtor prior to the incidence of daily penalties (“astreintes”). Since 2013, the STJ has ruled that the debtor’s personal notification was no longer necessary to authorize the incidence of the penalties, which led to divergent appeals tried at the end of last year. With regard to this, the 2015 Code of Civil Procedure provided that the summons of the debtor to comply with the ruling, regardless of the nature of the obligation, would occur through the Court Gazette, addressed to the debtor’s attorney of record in the case files (article 513, paragraph 2, item I).

The “astreintes” refer to the monetary penalty imposed by the judge when the debtor does not comply with an obligation to do something or to withdraw from doing something. The divergence arose in light of conflicting decisions issued by the 1st and 2nd Panels, and even by the Special Court, of the STJ.

The prevailing understanding, rendered by Minister Luis Felipe Salomão, states that the 2015 Civil Procedure Code did not eliminate the determination of prior personal notification of the debtor, prescribed by Precedent No. 410, which must be complied with. Additionally, the Minister stated that judgments ordering payment of exorbitant penalties are commonly noticed precisely due to the lack of information to the debtor to fulfil his/her obligation. Therefore, it is necessary that the notification regarding the “astreintes” be directed not only to the attorney in charge of the lawsuit, but also to the debtor.