We find that resolving issues outside of the court structure sometimes provides a more satisfying and cost effective solution for our clients. However this sometimes just proves unattainable, leaving litigation the only way to resolve a dispute. Whether your dispute is with a British or Spanish individual, company or institution, we can advise you on procedures, courses of action, the chances of success of a claim, and the likely value of that claim.
We are experienced in negotiating, mediating and litigating:
- Commercial claims in Spain including employment matters
- Contractual claims in Spain
- Shareholders and partnership claims in Spain
- Intellectual property claims in Spain
- Construction, real estate and asset claims in Spain
- Insolvency, credit and debt proceedings in Spain
- Tenancy disputes, supporting tenants and landlords in Spain
- Will and probate disputes in Spain
- Negligence, professional or otherwise in Spain
- Family matters (divorce, matrimonial annulment, custody, etc…) conducted before the Spanish courts
- Criminal proceedings in Spain
- Personal Injury claims
- Recognition & enforcement of foreign court orders in Spain
Litigation in Spain
Scornik Gerstein LLP has been representing international clients before the Spanish Courts for more than 30 years. The litigation team has extensive and in-depth knowledge of the particularities of cross-border litigation in Spain, and all our lawyers have a long-established experience in dealing with matters, which involve foreign elements.
Our Litigation Department provides advice in most aspects of court disputes, both from a claimant’s and a defendant’s perspective.
More particularly, we have large experience dealing with property disputes, debt recognition and collection in Spain, personal injury matters, probate / inheritance disputes, claims seeking compensatory damages, claims for or against insurance companies, property disputes and proceedings to enforce foreign judgments in Spain.
How are proceedings organized in Spain? How long can they last?
As each case is different, the particular steps required and timetable followed will depend on the facts and circumstances of the dispute. Spanish courts are sometimes unpredictable in this regard, and whereas some courts may act surprisingly expeditiously, many of them are overloaded with work and will therefore be unable to meet the deadlines demanded by the Spanish Procedural laws.
In most of the proceedings it is required to be legally represented by a fully qualified Spanish abogado and a procurador. Although technically it is the procurador who holds the client’s representation, their involvement is mostly limited to communicating with the court. The abogado has conduct of the litigation and advocates in the courtroom.
The main stages of an ordinary claim are as follows:
All cases are required to be triggered by the filing of a claim. Once the claimant has filed it and this is duly admitted by the Court’s Secretary, the claim is served by the court to the defendant. The Defendant then has 20 working days after service of the particulars of claim to file its defence, which is a formal response to the particulars of claim (and which may also include a counterclaim). The claimant has then the opportunity to respond to the defence and the defendant to reply to the claimant’s reply to the defendant’s defense.
Three days after the expiration of the aforementioned 20 days, the Court Secretary should set the date when the preliminary hearing is due to take place. Depending on how busy the court might be however, the preliminary hearing can be listed several months after the defence has been filed and accepted by the court.
Proceedings come to an end with a final hearing, which should be listed within a month after the preliminary hearing. However again, due to the courts being normally clogged, the final hearing can be listed several months after the preliminary hearing takes place.
After the final hearing, the Court has 20 days to issue its relevant judgment. Again, though, Courts are normally unable to meet the said deadline and this normally takes place several weeks - if not months - after.
How much does cost to go to court in Spain?
Unlike in England, since 28 February 2015 natural persons in Spain enjoy the right to access justice without having to pay court fees in the vast majority of cases. Indeed, only companies and legal entities are required to pay court fees in certain cases, and in any case they are considerably lower than those to be paid in England. Moreover, legal persons entitled to get legal aid (e.g. those declared to be associations of public interest such as charities or NGO’s) will not be required to pay court fees either.
Who should be liable for paying the legal costs?
The general rule in Spanish litigation establishes that if the court awards the relief sought in full, the court on its own motion will order the losing party to reimburse all the necessary expenses incurred by the winning party, unless in the opinion of the court the case involved serious factual or legal doubts. It is therefore essential to be absolutely precise as to what is and what is not claimed and the detailed extent of those claims. In contrast, when there is only a partial victory, each party shall pay its own expenses, and the common expenses in equal shares, unless there are reasons to impose the costs on one of them for reckless litigation. However, it must be borne in mind that the court has discretion to make a different costs order.
There are, however, a set of situations where the losing party will not pay the counterparty’s costs even if the relief sought by the claimant is awarded in full: acquiescence (allanamiento) prior to submitting the statement of defence (unless the claimant can show that the defendant was claimed out of court but to no avail), a lawsuit withdrawal (desistimiento) (only when consented to by the defendant), or an agreement by the parties acknowledging that there has been out-of-court relief or lack of cause for the proceedings.
Although there is freedom between the lawyer and the client to agree the level of legal fees payable by the client to the lawyer, these might not be recovered in full since the party ordered to pay may argue that these are excessive or inappropriate in accordance with the local bar guidelines.
If so, the actual amount of costs to be paid will be subject to an assessment process by way of incidental proceedings, as it would occur in England. The criteria considered by those guidelines are based on the economic value of the claim and the work done by the lawyer. The court is free to consider various factors when evaluating costs, including pre-trial settlement offers, but is not bound to do so.
Can I enforce an English judgment in Spain?
Subject to Brexit changing the current status, yes, you can indeed. Spain fully supports the principle of mutual recognition of judgments in civil and commercial matters, embodied in several European and international instruments of which the UK is also a party. We have a long-established experience in dealing with recognition and enforcement proceedings before the Spanish courts. We will analyse your situation and advice you on the best way to proceed in order to enforce your judgment effectively.
The starting point to establish how an English judgment can be enforced in Spain is set forth by article 523 of the Spanish Civil Procedure Code, which on its turn refers to international law regulations on the matter. Thus, in order to recognise or enforce foreign decisions awards, international conventions and European legislation must be applied.
The key European convention in this regard is Regulation (EU) 1215/2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Section 40 of the Preamble of the Regulation specifically notes that the UK wished to take part in the adoption and application of this Regulation.
Under article 2 of this European regulation, the Spanish Courts may recognise and enforce any judgment given by a court or tribunal of the UK, whatever the judgment might be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.
According to article 36.1 of Regulation (EU) 1215/2012, an English judgment will be recognised in Spain without any special procedure being required (the so-called automatic recognition). However, the scope and effects of this recognition will be limited to the specific proceedings where the judgment has been presented.
Indeed, for a judgment to be fully recognised and enforceable before any Spanish court and within any proceedings, the Spanish legal system requires the requesting party to obtain an exequatur – whose requirements are more complex and time-consuming than the ones of the automatic recognition.
In order for a judgment to be declared enforceable in Spain, the Spanish courts will first analyse if:
- The foreign country does not oppose the enforcement of Spanish judgments.
- There is no material contradiction or incompatibility with a previous judgment rendered, or judicial proceedings outstanding, in Spain.
- The judgment has been issued as a consequence of a personal action.
- The judgment has not been issued in default of appearance, unless the defendant was given due notice.
- The obligation enforced is not unlawful under Spanish law.
- Spanish courts had no exclusive jurisdiction over the dispute and there is no contradiction with Spanish public policy.
Do I have any alternative, other than going to court, to resolve my dispute?
It is certainly true that court litigation remains the main method of dispute resolution in Spain. However, several Alternative Dispute Resolution methods are growing steadily: assisted negotiation, mediation and arbitration are the most popular Alternative Dispute Resolution (ADR) systems in Spain. The team at Scornik Gerstein LLP can advise you which ADR method would suit you best, and guide you through all the proceedings from the filing of the claim to the final decision.
As said, assisted negotiation, mediation and arbitration are the most popular alternative routes to resolve a dispute in Spain without going through the courts' system. Recent developments of Spanish legislation (e.g. the Mediation Act, enacted in 2012) encourage and facilitate ADR systems with a view to promoting amicable settlement of disputes, thereby reducing the workload of courts and tribunals.
Although each system has its particularities, the basic prerequisite of all of them is the consent of all the parties in the dispute. This consent may be implicit or explicit, and it may be given before or after the dispute arises. In this regard, parties can only be compelled to ADR if there is a previous agreement to this effect except in employment cases, where a preliminary resort to mediation is compulsory.
The use of ADR systems is highly recommended for cases with a high technical background and/or international cases (for example, construction, engineering, energy and sports), and also for those where the parties are expecting to maintain a relationship of any kind in the future (i.e. the parents of a child in a custody dispute, or two siblings facing an inheritance matter).
If you would like more information, please do not hesitate to contact us.
