Litigation

Limitation issues

What are the time limits for bringing civil claims?

The most common limitation periods for bringing civil claims are set out in the Spanish Civil Code. Notwithstanding, there are many exceptions to general terms of limitations set out in the corresponding special rules (eg, IP law, insolvency, corporate law, certain regional rules - ie, Catalonia). The general rule, which applies for personal actions that have no specific time limit, is that the claimant has a five-year period from the date on which fulfilment of the obligation could be requested to submit the complaint. Other relevant time limits laid down in the Spanish Civil Code are:

  • 20-years for foreclosure of a mortgage;
  • one year for civil tort liability; and
  • four years for an action for annulment.

The law distinguishes between limitation and prescription periods. While prescription periods may be interrupted by bringing an action before the courts, by an out-of-court claim or by any act of acknowledgement of the debt by the debtor, limitations cannot be extended. While personal actions, mortgage actions and tort liability are subject to prescription periods, actions for annulment are subject to limitation. This is also the case for the five-year time limit for enforcing awards and other titles. As per the obligations regarded as null and void there is no time limitation.

Pre-action behaviour

Are there any pre-action considerations the parties should take into account?

Even though, in general, no specific actions are required before bringing civil actions, the Spanish Civil Procedure Act (SCPA) provides for some pre-action instruments, different from interim measures, aimed at preparing the claim, gathering evidence and examining the means of evidence in advance.

Preliminary proceedings

Their purpose is to obtain specific information or documents necessary for the preparation of the proceedings. For example, section 256 of the SCPA sets out that a hearing may be prepared by:

  • an application for the exhibition of the insurance policy by those who consider themselves damaged by an event that may be covered by civil liability insurance;
  • an application for the exhibition of a deed of last will by whomever who consider themselves to be an heir, co-heir or legatee; or
  • an application by a party intending to bring legal action for IP rights for the exhibition of documents or information of the person against whom possible action may be addressed.

Examining evidence in advance

Before the commencement of the proceedings the party intending to initiate them, or any of the parties during the course of the proceedings, may request the court to examine evidence in advance, provided that there is a grounded fear that, due to the persons or state of things, the taking of evidence cannot take place at the usual procedural time (section 293 et seq of the SCPA).

Taking of evidence

Prior to the commencement of any proceedings the party intending to initiate them, or any of the parties during the course of the proceedings, may request the court to adopt measures to preserve things or situations or put on record their actual existence and characteristics to prevent it becoming impossible to carry out the required taking of evidence at the designated time (section 297 et seq of the SCPA).

Starting proceedings

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

The proceedings start with the filing of a writ of claim drafted in Castilian or another Spanish language. The claimant must include a full description of the facts under dispute, attach relevant pieces of evidence, duly translated into Spanish, and indicate the legal grounds supporting the claim. The claimant’s statement of claim sets the framework of the dispute, which may not be modified after the submission of the statement of defence. Further submission of evidence or inclusion of new relevant facts or legal grounds is only permitted in exceptional circumstances.

After examining the claim, the court clerk issues an order admitting the claim, which includes a preliminary analysis on the capacity of the claimant to take part in legal proceedings, the jurisdiction of the court and the type of proceedings to be conducted. The claim must be personally served on the defendant, either by a court agent of the claimant or the appointed court clerk.

Courts’ caseload is distributed using a rotation system, which courts cannot change. Notwithstanding the above, they have some discretion to set hearings and formal deadlines to issue judgments and other decisions, which are usually extended.

Timetable

What is the typical procedure and timetable for a civil claim?

Ordinary proceedings comprise four stages: filing of a claim (referred to in the previous question); the statement of defence; a preliminary hearing; and a trial.

Statement of defence

By means of the order admitting the claim the defendant is granted a 20-working-day term to answer as from the service of the claim. The statement of defence must also include the factual background of the dispute, the legal grounds and all relevant documents, provided that the exceptions for further submission of evidence and facts applicable to the claimant also apply to the defendant.

The statement of defence may only request the dismissal of the claim or the offset of amounts and must raise any procedural exceptions that would prevent the valid processing of the action, such as:

  • lack of legal standing;
  • lis pendens or res judicata;
  • inappropriateness of the proceedings;
  • a defective claim; or
  • lack of due joint litigation (request that a third party be called as a co-defendant).

It is also possible for the defendant to totally or partially accept the claim at the time of filing the statement of defence. Procedural issues regarding jurisdiction and competence must be raised by filing a preliminary plea within 10 days as from service of the claim. In that event, the 20-working-day term granted to submit the statement of defence is interrupted until the decision on the jurisdiction and competence is issued.

When responding to the claim, the defendant may file a counterclaim if there is a connection between the motions set out in the claim. The counterclaim must meet the same requirements as the claim and the answer to the counterclaim must meet the same standards as the statement of defence.

Preliminary hearing

After the filing of the statement of defence or the answer to the counterclaim a preliminary hearing is held (section 414 et seq of the SCPA). At such hearing the court:

  • asks the parties whether it is possible to settle the dispute. If the parties have reached a settlement, they may ask the court to judicially approve it so as to obtain an enforceable decision;
  • decides on the procedural exceptions raised by the defendant;
  • gives the parties the opportunity to raise additional arguments without changing the subject of the dispute, clarify any plea, add additional complementary pleas and allege relevant facts for the dispute coming out after the filing of their writs (usually subject to narrow interpretation);
  • gives the floor to the parties in order to challenge the documentary evidence proposed by the opposing party in the writ of claim and the statement of defence;
  • requests the parties to establish the facts under dispute. The court may outline the most relevant facts, on the basis of the allegations submitted by the parties in the claim and in the statement of defence;
  • decides on the admission and challenge of the means of evidence to be produced at the trial. The court may point out further means of evidence if it considers that the evidence proposed by the parties is insufficient. Spanish courts are reluctant to order discovery; and
  • sets a date for trial in the event witnesses or experts are to be examined. If only documentary evidence is to be produced, the court may not arrange a date for trial and discretionally order the parties to submit final conclusions (orally or in writing).

Trial

At the trial, the admitted means of evidence are produced, such as the examination and cross-examination of witnesses and experts. Parties will make closing statements. In the event there is evidence that cannot be examined at the trial (eg, a witness cannot attend the hearing), the parties may request the court to set a final hearing to examine that particular piece of evidence.

After producing all admitted means of evidence, the court will issue a judgment, which may be appealed before the provincial court of appeal within 20 working days upon service thereof.

The duration of ordinary civil proceedings at the first instance varies considerably depending on the court’s workload. A time frame of 12 months as from the filing of the particulars of claim could be regarded as a reasonable period of time to obtain a judgment (excluding any possible procedural issues that may lengthen the proceedings).

Case management

Can the parties control the procedure and the timetable?

Even though the timetable is set by the court, notwithstanding some statutory limits, the parties may apply for a postponement of the hearings or a stay of the proceedings under certain circumstances, particularly if they are conducting negotiations to reach a settlement agreement (section 19(4) of the SCPA).

Class action

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

The collective litigation phenomenon has been a very important part of the legal landscape in Spain in recent years, in particular due to the big impact of some Supreme Court judgments favourable to consumers in 2010.

The statutory rules governing ‘class’ litigation are mainly laid down in the SCPA (referring to consumers’ and users’ rights and to effective equality between men and women) and in the statutory rules about consumers’ and users’ protection.

Although the SCPA does not provide for special proceedings for collective group litigation, it does contain some specific procedural rules.

Thus, on the one hand, ordinary instruments of joinder of claims or proceedings or consolidation of claims provided for by sections 71 to 80 of the SCPA may apply. They allow several parties to jointly claim whether the facts or the basis of the claims are the same. Sections 76(2)(1) and 78(4) specifically refer to the joinder of proceedings brought by consumer organisations seeking the protection of collective and diffuse interests.

And, on the other, there are some specific rules regarding the enforcement of group and diffuse interests of consumers which enable proper collective actions to be taken. For example, section 11 recognises the standing for the defence of the rights and interests of consumers distinguishing between (i) ‘collective’ or ‘group’ interests (referring to consumers or users identified beforehand or easily identifiable) and (ii) diffuse interests, affecting a number of consumers or users not identified or not easy to be identified (section 11(2) and(3) respectively).

The most common remedies are injunctions and actions for damages. Also, there are some specific provisions concerning standard terms in contracts that provide for three particular remedies only available in class actions:

  • injunctions aimed at preventing the defendant from keeping using particular standard terms in its contracts;
  • claims seeking a judgment that orders the defendant to rescind a recommendation to use some standard terms; and
  • actions for the court to declare that a particular clause must be considered a standard term in contracts and be registered in the Registry of Standard Terms in Contracts (available through the Registry of Moveable Goods).