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Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

The Spanish Civil Procedure Act 1/2000 sets two main types of civil procedures to file a product liability claim: ordinary procedures (for claims in excess of €6,000) and oral procedures (for claims below €6,000).

The claim is filed by writ identifying the claimant, the defendant, the address for notification, the facts and the legal basis of the claim. The evidence on which the facts are based should also be filed with the claim and a fee of €300 is payable to initiate an ordinary procedure claim.

In ordinary procedures, after the claim has been filed the defendant must file a statement of defence or a counterclaim within 20 working days. After this, the court will call the parties to a preliminary hearing before the trial. In this preliminary hearing, parties request evidence to take place at the trial (eg, witnesses, interrogations) and the court orally decides on whether the evidence requested is useful and appropriate. Documents should be filed with the claim and with the statement of defence. There is limited discretion for a party to rely on a document filed at a later point, but only if the party satisfies the court that it was not possible to file at the usual time (eg, newly disclosed documents, documents created after proceedings started but material to the issues). The court clerk sets a hearing date. In the trial, the parties present orally their conclusions on the facts and the evidence. Lastly, the court will give its judgment.

In oral procedures, the main differences are that:

  • the defendant has only 10 working days to file the statement of defence or a counterclaim; and
  • there is no preliminary hearing before the trial, and the trial cannot take place unless it is requested by any of the parties or the court considers it necessary.

The parties should announce which evidence they wish to examine prior to trial (eg, witnesses or documents required for cross-examination). Where a party has control over evidence (eg, documents in the party's possession, his or her expert witness), that party should ensure that the evidence is available for the trial. 

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

The court can issue procedural court orders, orders and judgments:

  • A procedural court order is issued when the decision refers to procedural matters requiring a judicial decision by virtue of the law;
  • An order is issued when a decision is adopted on appeal against a procedural court order or decree, or when a decision is adopted on the admission or rejection of a claim, counterclaim, joinder of actions, admission or rejection of evidence, judicial approval of settlements, mediation agreements and covenants, injunctions and nullity, validity of the procedures or any other incidental matters; and
  • A judgment is issued to end the proceedings and resolve the case, at first or second instance.

Although the First Transitional Provision of the Civil Procedure Act provides that "[t]he system of ordinary appeals set forth herein shall apply to any interlocutory or non-definitive decisions issued in all kinds of proceedings and instances after the entry into force of this Act", in practice some interlocutory orders are substantially limited in terms of appeals, such as the decisions admitting or refusing the taking of evidence's proposal. The admission or refusal of evidence can be appealed only at second instance.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

Article 256 of the Civil Procedure Act provides some pre-trial disclosure mechanisms. According to this provision, to help parties prepare for any hearing applications, disclosure of the following documents may be requested:

  • documents proving the capacity, representation or legal competence of an individual; and/or
  • documents/objects that may be in the possession of an individual that shall be referred to at the hearing.

The claimant can make an application for disclosure under Article 256 and, if the court upholds the application, the other party is required to submit this information. The application is limited to some cases (eg, in proceedings for the defence of common interests of consumers, in order to specify the members of the affected group when such members can be easily determined).

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

Evidence is governed by Articles 281 to 386 of the Civil Procedure Act. Article 299 of the act lists the accepted methods for taking evidence, which include, but are not limited to:

  • questioning the parties;
  • public documents;
  • private documents;
  • experts’ opinions;
  • witness evidence;
  • taking of evidence by the court (eg, an inspection);
  • any recordings of words, sounds and images; and
  • any instruments that allow words, data and mathematical operations.

Evidence is submitted at the preliminary hearing in ordinary procedures or trial in oral procedures, and will be examined by the judge and cross-examined by each party. The court weighs and evaluates the evidence before it when determining the claim.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

While the court has the power under Article 339.5 of the Civil Procedure Act to appoint an expert ex officio in certain proceedings, this does not apply to product liability claims. Therefore, the proposal and appointment of experts in product liability cases is a matter for the parties.

Either party may, however, request in its preliminary writs that the court appoint an expert if it deems that an expert’s report is appropriate or necessary. The court-appointed expert's opinion is at the expense of the applicant, without prejudice to whatever may be decided regarding the legal costs.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Yes, generally each party appoints its own experts, although there is always the possibility to request the court to appoint an expert. Under Articles 336 and 337 of the Civil Procedure Act, the experts' opinions on which each party wishes to rely must be provided with the claim or the statement of defence. If the expert report is not drafted at that time, the parties must signal this in the claim or statement of defence, and file it no later than five working days prior to the preliminary hearing or five working days before the trial in oral procedures.

At trial, the expert may be questioned by all the parties and may be asked to provide an explanation regarding one or more aspects of the report, as well as answer questions and respond to objections as regards the method, premises, conclusions and other aspects of the evidence.

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

Article 11 of the Civil Procedure Act establishes the possibility of collective proceedings for the defence of the rights and interests of consumers and users.

Various parties can bring a collective action, depending on the circumstances:

  • Where the membership of a group of affected consumers or users can be easily determined, the following can bring a collective action:
    • a group of consumers or users affected by the defective product/harmful event;
    • a consumer association;
    • legally incorporated entities that have the defence or protection of consumers or users as their object; and
  • Where the membership of a group of affected consumers or users cannot be easily determined or is unknown, only the representative associations of consumers and users, in accordance with the General Consumer and User Protection Act (as registered in the Associations of Consumer and User Registry), can bring a collective action.

According to Articles 15, 221 and 519 of the Civil Procedure Act:  

  • in proceedings where the affected consumers or users can easily be determined, all the affected should be informed of a claim to appear in the proceeding. The appearance is possible at any point, but such parties can participate only in certain acts; and
  • in proceedings where the affected consumers or users cannot be easily determined or is unknown, all possible affected parties should be informed of the possibility to appear in the proceeding, but only those who actually appear can be part of the claim.

It is important to take into consideration that consumers who have suffered the damage will always have individual legal standing to file an action, and the court cannot force individuals to join a class action.

Appeals

What rules and procedures govern appeals of court decisions?

Articles 457 to 467 of the Civil Procedure Act provide that, in product liability proceedings, it is always possible to appeal first-instance judgments before provincial courts.

Appeal judgments can be further appealed on only two bases:

  • an extraordinary appeal for infringement of procedure (under Articles 468 to 476 of the Civil Procedure Act); or
  • a cassation appeal as long as:
    • they are issued to provide fundamental rights with the effective protection of the civil courts;
    • the amount exceeds € 600,000; or
    • the decision on the appeal has reversal interest.

‘Reversal interest’ means that the judgment subject to appeal:

  • contradicts the Supreme Court’s jurisprudence;
  • decides on points and issues about which contradictory jurisprudence from the provincial courts exists; or
  • applies rules that have been in force for less than five years (as long as there is no Supreme Court jurisprudence regarding prior rules of equal or similar content).

Statute of limitations

What is the statute of limitations for filing product liability claims?

Article 143 of the General Consumer and User Protection Act provides that actions for the recovery of damages caused by defective products must be brought within three years of the date when the injured party suffered the damage, whether it is due to the product defect or to the damage that this defect caused, provided that the injured party knows who the responsible ‘producer’ of the product is.

Actions seeking the payment of compensation from all other parties liable for damages must be brought within one year, counting from the date of compensation payment. Any interruption to the statutory limitation periods is governed by the provisions of the Civil Code.

Lastly, the recognised rights of the injured party under the General Consumer and User Protection Act with regards to damages caused by defective products expire after a period of 10 years counting from the date on which the specific product that caused the damage was put into circulation, unless judicial proceedings are initiated within that period.

Timeframe

What is the typical duration of proceedings in product liability cases?

Duration and timeframes for proceedings depend on the jurisdiction involved and whether the case is submitted to the civil, criminal or administrative jurisdiction.

Civil proceedings typically last between nine and 18 months (subject to the capacity of the particular area or place where the case is assigned).

Criminal proceedings tend to be longer, despite an amendment to reduce their duration, particularly if the case involves or attracts media attention.

Administrative proceedings typically take 12 to 18 months.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

Under the Civil Procedure Act (in particular, Article 394), costs in the first instance are borne by the unsuccessful party, unless the court considers that the case may pose serious de facto or de iurequestions. If the upholding or dismissal of the pleas is partial, each party normally pays its own costs of the proceedings and the common costs are shared equally. This general rule can be displaced if the court considers it appropriate to impose the costs on one of the parties due to its conduct during the course of the litigation.

The unsuccessful party will have to pay the full amount corresponding to the opposing party's attorneys or experts' fees, as long as these costs do not exceed one-third of the cost of the total amount claimed. The one-third mentioned does not include the costs borne as a result of professionals' fees subjected to rates or dues (eg, procurators).

To calculate recoverable legal costs, the recommended fees issued by the Bar Associations of Spain are useful reference points.

What rules and restrictions (if any) govern contingency fee arrangements?

Contingency fee arrangements, known as cuota litis, are allowed under Spanish law. Until 2008, contingency fees were admissible if the agreement between the lawyer and the client did not consist of an understanding, prior to the termination of the case, whereby the client agreed to pay the lawyer solely through a percentage of the result of the case, regardless of whether it consisted of money or any other benefit, good or value that the client may achieve by means of the case. Following a Supreme Court judgment of November 4 2008 (JUR\2009\2800), a change of doctrine occurred allowing more freedom in agreements between lawyers and clients on the amount and percentage to receive in relation to the result of the case.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

Third-party litigation funding is not prohibited in Spain. While still rare, it is a developing area due to recent large-scale banking litigation.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

The Legal Aid Act 1/1996 makes legal aid available to Spanish citizens, nationals of other EU member states and any foreigners that may be in Spain, as long as they satisfy the threshold requirements and can show that they lack sufficient resources to litigate on their own. Article 2 of the Legal Aid Act sets out the people and entities that can qualify for legal aid; this includes not-for-profit organisations, managing entities and foundations registered in the Public Registry.

The threshold requirements for a grant of legal aid are that the person's income is not:

  • twice as high as the public income index if the person has no family income to count on;
  • two and a half times higher than the public income index when the person is part of a family of less than four people; or
  • three times higher than the referred index when the family consist of four or more members, or is considered a ‘large family’ under Spanish law.

Legal entities' right to legal aid is recognised for as long as the entities prove that they lack sufficient resources, and the accounting result for a financial year is inferior to the quantity corresponding to three times the annual public income index.

The annual public income index for 2018 is €6,454.03 in terms of 12 payments, and €7,519.59 in terms of 14 payments (www.iprem.com.es/).

Settlement

What rules and procedures govern the settlement of product liability cases?

Articles 415 and 443 of the Civil Procedure Act, which apply to all ordinary proceedings, provide that the parties may state at court if they have reached a settlement, or if they are ready to do so and the court has authority to validate the matters settled upon.

Any settlement agreement validated by the court shall have the effect granted to court settlements and may be put into effect through the procedures laid down to execute judgments and court-approved agreements. Such agreement may be appealed under Article 510 of the Civil Procedure Act (revision of a judgment by the Supreme Court or the Superior Court of Justice) that applies to court settlements. This revision should be filed in cases where:

  • new documents become available that were not field due to force majeure;
  • the decision was based on false documents or interrogations; or
  • bribery, violence or other fraudulent acts occurred.

Additionally, Article 517.2 of the Civil Procedure Act establishes that court rulings that approve or validate court settlements and agreements achieved in the proceedings, accompanied, if necessary in order to record its specific content, by the corresponding records of the proceedings are enforceable.

Any enforcement action based on a judgment, a decision of the court or of the Court Clerk, approving a court settlement or agreement reached in the proceedings, or in an arbitration or mediation agreement, will expire if the relevant enforcement claim is not lodged within five years of the date when the judgment or decision became final.

How common are settlements in product liability cases?

It is difficult to assess how common settlements are in product liability cases as the parties’ appetite for and ability to reach a settlement depends on the circumstances of each case. The greatest change in recent years in product liability cases has been the increased use of confidentiality agreements, with their corresponding penalties – all of which makes the environment much more favourable for settlements, but also makes it more difficult to assess how commonly disputes are resolved via this method.

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

The General Consumer and User Protection Act proposes a Consumer Arbitration System, which is an out-of-court system for resolving disputes between consumers/users and businesses. Under this system, consumer and user complaints are resolved, provided that the dispute does not involve intoxication, injury or death, and that there are no reasonable indications of crime. Submitting to the Consumer Arbitration System is voluntary, and the agreement to submit must be expressly stated in writing, via electronic media or in any other legally admissible form. The decisions are binding and enforceable on both parties.

Possible ADR measures with regards to defective products also include voluntary submission to mediation or arbitration proceedings as set out in the Civil and Commercial Matters Mediation Law 5/2012 and the Arbitration Law 60/2003.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

ADR is not commonly used in relation to product liability cases in Spain.

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