As litigating in Spain may be sometimes an overwhelming experience even for Spaniards, needless to say it could be almost always shocking for non – Spaniards, especially those coming from common law / English speaking jurisdictions. When a non – Spaniard has to undertake a Court procedure in Spain on civil or commercial cases, it is highly recommendable to bear in mind several tips on how this works in Spain:
(i) There are three Court levels in Spain: the lower Courts (so – called Juzgados de Primera Instancia), the Courts of Appeal (so – called Audiencias Provinciales, and located in the capital city of each Province) and the Supreme Court (with seat in Madrid). Nevertheless, access to Supreme Court is restricted to the most significant cases (those with an involved amount beyond 600,000 Euro or those presenting special interest for the unification of case – law – being the Supreme Court so restrictive in accepting the effective concurrence of such “special interest” -); thus, most of the cases are definitively settled as res judicata within two – levels Court System.
(ii) Cautionary measures can be obtained from the Court at any tie over the process, insofar they are proved as necessary and suitable to ensure the effectiveness of a future condemnation, and proportionate to the aim they are seeking (the petition has to be consistent with the two classical conditions of fumus boni iuris and periculum in mora). It is usual that plaintiff pleads for cautionary measures at very early stage of the procedure
(iii) Regarding time elapsing up to the process comes to a definitive end; there could be severe variations between those cases reaching the Supreme Court and those which do not. The completion of the whole route by any given case from the lower – Courts up to the Supreme Court, could take an average of five years up to definitive settlement. For those cases which are not able to reach the Supreme Court, the average duration of the process is around two years (depending on the province). Hence, if time is of essence, alternatives such as arbitration have to be seriously considered before starting a Court process, especially on those cases with an amount beyond 600,000 Euro.
(iv) Judgements casted by Courts are provisionally enforceable if they are appealed, so that the plaintiff does not have to wait until the end on the appealing process to enforce a positive judgement. However, provisional enforcements are of course reversible, so in case the judgement provisionally enforced is revoked, then the plaintiff has to fully restore the previous situation before the enforcement.
(v) Filing a Court procedure in Spain requires the mandatory engagement (save as for very few exceptions) of two different professionals: a lawyer who is qualified to appear in Court (as he/she has been accepted to this end for the Local Bar Associations) and a court agent (who is, in fact, the representative of the litigator before the Court). Having to retain a court agent is often difficult to understand for clients not used with Spanish Court system, as they do not exist in a wide range of Jurisdictions; however, their role is compulsory according to Spanish Litigating Rules (except for very small cases, so their engagement cannot be avoided to file a Court claim.
(vi) Filing a civil or commercial court case by legal entities (not by individuals) is subject in Spain to the previous payment of a levy so called “Court Tax “ (Tasas Judiciales), of 0,5% of the amount involved on the case, up to a cap of 10,000 Euro per case. From 2015 individuals are exempts to pay Court taxes
(vii) That party (regardless it is the plaintiff or defendant) who loses the case is condemned to pay the legal expenses of the winning party (save as in those cases presenting very serious legal doubts). Legal expenses include lawyers’ fees calculated according to the rules set by Local Bar Associations (which, generally speaking, are around 10% of the claim amount), Court Agent fees and, if so, Court taxes paid by the winning Plaintiff.
(viii) The procedure for civil and commercial cases have three different stages: the first one, entirely in written form, when plaintiffs and defendants submit their writs to Court; the second one, so – called previous hearing (audiencia previa) held in Court, when parties appear before the judge to delimitate the terms and subjects under discussion within the procedure and to propose the means of evidence by which they envisage to upheld their pleas before the Judge; and third one, so -.called the main hearing (vista or juicio), when plaintiff, defendants, witnesses and technical specialists (if required) depose before the Court, and barristers orally give their final conclusions to Court.
(ix) Although it is stated by law once the main hearing has taken place, judgements have to be casted by Court within the following fifteen days, it usually takes between one and two months until the judgement is casted and served to the Court agent of the parties.
(x) Once any given judgement is served to parties’ Court agents, the losing party has twenty business days reckoned from the date when the judgement has been served to file its appeal,
These quick tips can give the reader an idea on how to deal with a Court case in Spain in a timely and cost – efficient way.