How does the Court process in Spain work? Many people do not realise that the Court Process in Spain is not the same as in their home country. It is important to know the differences and to have a good Spanish litigation lawyer who knows the court process in Spain well.
“To me, a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box.”
The first level Court in Spain are the local Courts or Juzgados de Primera Instancia and an incident will be referred to the nearest one. Different Courts have a different level of workload. So depending on the Court and the type of case it can take, for instance, 6 months to 18 months for a case to receive a first pre-trial (Audencia Previa).
Previous to this, the Judge would have received written documents from both the plaintiff’s lawyers and the defendant’s lawyers. This pre-trial is only for the barristers to discuss points of law. Then it can take another year to 18 months possibly for the main hearing date (juicio).
After the first hearing it is necessary to wait for a Resolution from the Court. This is meant to be issued within 6 weeks but can sometimes take 6 months. After the Resolution is granted, there are 20 working days to appeal to the next level Court. This is the Court of Appeal, which is based in the capital or local main city of each province.
The Appeal Court or Audencías Provinciales does not have an open hearing, but the case is reviewed by three Judges, often taking again 6 months to reach a decision, sometimes longer, then a Resolution is again issued. The Court process in Spain is such that generally the case will stop there as very few cases go to the highest level of Court, the Supreme Court (Tribunal Supremo de España).
The Supreme Tribunal for Spain is in Madrid and for cases that have an amount over 600,000€ or for cases which are imprecise in terms of the law. Very few cases are accepted as suitable for hearing by the Supreme Court of Spain and judgements from there can be very important.
It does depend on the region and workload of the Courts, but as we can see it can take five years from an Action being presented in the lower Court to definitive settlement in the Supreme Tribunal if it reaches that stage. Thus it is often advisable to attempt strong negotiation before taking steps with a costly and lengthy Court process. In addition, a client has to pay for the Action in the first Court (barrister and clerk of court fees). Then if they win, they would be able to probably claim legal costs against the other party (as long as included in the lawsuit).
However if the other party appeals (or they do), they will need to pay for the costs of the High Court for the Appeal plus the costs if they were to lose, which might be considerable. It is a serious undertaking. However, sometimes, unfortunately there is no choice other than a Court process in Spain. And sometimes, cases are settled after the first local Courts, or even before out of Court.
A good barrister can sometimes arrange this and they will try as their fees are not dependent on there being a Court hearing. They act in the client’s best interest and that is to get the best settlement and result they can in the shortest period possible.
Say a Judgement is obtained in a local Court for the return of a sum of money, for example. Then this Judgement can be provisionally enforced and the money obtained through the Courts and provisionally paid out. However, if at Appeal this Judgement is overturned, then the funds would have to be returned.
A solicitor will usually be paid in advance and certainly before the often lengthy Court Action is presented in Court (although sometimes special arrangements can be made). Legal expenses will be the lawyer’s fees as set by guidelines according to the local College of Lawyers (Colegio de Abogados), the clerk of court fees (they are employed by the client to deal with the administration aspect in the Courts plus Court taxes).
Many clients are surprised that in Spain they do not see the same level of formality as in a Court in the UK for instance. Barristers and Judges still wear gowns, but not wigs. Court rooms tend to be simpler, plain wood, plain seating, but some would say (especially after recent UK parliament events) does pomp and ceremony have anything really to do with the actual effectiveness of a Court process?
A Court case is still a serious process and treated as such in Spain. Clients attending Court can dress more informally, but trousers and a shirt (not shorts) however the rules about following the given procedures are much the same (no shouting out).
Litigating in Court is not like answering questions on emails, or in an essay at law school. Cases are complicated, issues are complicated, and not always
clearly presented. Court hearings in Spain are short and they do not go over all of the information of the case. Thus a good barrister such as our barristers need to be able to remember all that they have read (often huge amounts of facts and background information).
They need to prepare for the hearing thoroughly, and to be able to quickly use information retained to respond in Court. Each file is different, not equal, so it is essential that they study thoroughly for each case. That includes preparing for any eventuality with questions, for example. They need to not only be clever, as in intelligent obviously, but clever as in being intuitive, such as “smelling a rat” and getting the right answers out of a witness.
We have a great deal of experience in Court, which means fortunately we win the majority of our cases. If you have a prospective legal case, why not see if we can win yours? Contact us for more information on what you could gain from a Court process in Spain.