All questions

Litigation

i Forum

Civil procedure is regulated by the Spanish Civil Procedural Act enacted on 7 January 2000.

The Spanish legal system is unitary and uniform throughout the territory. This means that its courts are organised in territorial terms into provincial districts, each of which groups together several geographical areas, which, in turn, comprise several municipalities.

The lowest level of the civil jurisdiction is made up of the courts of first instance, which are formed each by one single judge. In general, these courts hear in the first instance all proceedings in which the parties are private individuals and companies, and they are almost exclusively in charge of hearing and examining evidence and pleadings submitted by the parties and, subsequently, rendering the judgments in these proceedings.

The provincial court of appeal hears appeals against decisions rendered by the courts of first instance. There is a provincial court of appeal in each of the 50 provinces that make up the Spanish territory, and in populous provinces the court of appeal is divided into several sections, each sitting with three magistrates.

Apart from the Superior Courts of Justice (the highest court in each of the Spanish territory's autonomous communities), which, basically, are in charge of hearing motions for dismissal in connection with specific matters of law in their respective autonomous communities, the Supreme Court is the highest court in product liability cases, although some issues might be brought before the Constitutional Tribunal.

In product liability cases, the jurisdictional function, both in terms of fact-finding and of the legal declaration of liability, corresponds exclusively to the judges and the courts. Jury courts before which some crimes are tried do not have jurisdiction over product liability cases.

Furthermore, in Spain, there are two basic declarative procedures for seeking payment of compensation: the verbal proceeding or the ordinary proceedings. The stream a case falls under will depend on the amount claimed: cases in which payment of compensation of up to €6,000 is sought are dealt with in verbal proceedings; and cases in which the amount claimed is more than €6,000 are dealt with in ordinary proceedings.

In both cases, the civil procedure starts with the filing of the claim. The claim must include all factual allegations on which it is based, in as much detail as possible, as well as the legal grounds on which it is based. However, under the principle of jura novit curia, the plaintiff is not required to set out the legal grounds in thorough detail, and the legal grounds claimed are not binding upon the judge, who may uphold the action based on alternative legal grounds.

If verbal proceedings are initiated, once the claim has been filed and given leave to proceed, the defendant is notified so that he or she may present a defence (or a counterclaim brief) within a term of 10 working days (which includes all days of the year except Saturday, Sundays, national holidays, non-working days in the autonomous region or city where the proceedings take place, and the month of August).

Subsequently, the court will call the parties to a hearing in which they propose the evidence they are going to submit, the evidence is produced and, if the court deems it necessary, final conclusions are presented.

If ordinary proceedings are initiated, once notified of the lawsuit, the defendant will have a 20-working-day period to file the brief of response. Subsequently, the court will call the parties to a preliminary hearing in which they propose the evidence they are going to submit and, finally, the court calls the parties to the trial where the evidence and final conclusions are presented. In this case, therefore, there are two different hearings.

ii Burden of proof

The general principle that the burden of proof of a factual allegation lies on the person who makes the allegation is one that presides over the Spanish legal system.

In accordance with the general civil liability regime under Royal Legislative Decree 1/2007, the party claiming product liability must provide evidence of the existence of a defect in the product, of the damage or injury and of the causal relationship between the two.

In Spain, the standard of proof of that causal link is in theory high. The Supreme Court formally requires that evidence of the existence of a causal link must be clear and precise, and not based on mere deduction, conjecture or probability. Therefore, in principle, it requires absolute evidential certainty.

Consequently, in Spain, tests applied elsewhere like the 'more-probable-than-not' rule are, in theory, not applicable. And statistics or epidemiology do not appear to be sufficient by themselves to prove a causal link.

In practice, however, judges and courts often reach decisions in a manner that comes close to applying the more-probable-than-not rule, in particular, through recourse to the judicial presumption, whereby the judge or court applies human logic rules to deduce a fact and deems it proven (deduced fact) on the basis of the evidence of one or more basic facts.

On other occasions, the courts have determined the causal relationship by reference to statistics and epidemiology – which are deemed to be insufficient by themselves to establish the causal link – in combination with other basic facts.

The ruling on the rapeseed oil case is an illustrative example of the use of epidemiological studies by the Spanish Supreme Court. Although the events took place in 1981, the Supreme Court did not issue a final judgment on this case until 26 September 1997.

In that case, the Supreme Court found that:

  1. a link between the consumption of rapeseed oil and the disease suffered by more than 20,000 injured parties had been epidemiologically determined;
  2. the pathology found in the injured parties was new (it had never before been diagnosed) and consequently no risk factors inherent to the disease had been identified by the scientific community;
  3. none of the parties to the proceedings proposed any alternative causal hypothesis other than the consumption of rapeseed oil; and
  4. once the denatured rapeseed oil was removed from the market and its consumption had been suspended, no new cases of intoxication were diagnosed.

Importantly, epidemiology was not considered in itself to be sufficient proof of a causal relationship. Epidemiology was just one more link in the Supreme Court's logical reasoning chain that led to the evidential conclusion of the existence of a causal relationship.

iii Defences

Royal Legislative Decree 1/2007 specifically provides for the statutory limitation of actions brought by virtue of this law within three years of the time the victim sustained the injury or damages.

It also provides that the rights of the victim will lapse 10 years after the date the product was put into circulation (provided that no legal action has been instigated in that period).

In relation to the start of the computation of the limitation period, Article 1969 of the Civil Code provides that 'the time limit for all sort of legal actions, when not otherwise provided for under a special provision, will start on the day that the actions may be brought'. As for the time when the case is deemed to be actionable, it has been chiefly understood to be identified with the time when the injured party learned of the damage or injury sustained ('from the time the aggrieved party learned of it', as noted under Article 1968.2 of the Civil Code).

This criterion regarding the start of the time limit is also applied within the product liability context: 'from the date the injured party sustained the injury or damage'.

In any consideration of limitation periods, the Spanish courts tend to lean generously in favour of the interests of the plaintiffs.

Apart from the statute of limitations defence, Royal Legislative Decree 1/2007 provides that manufacturers or importers are not liable, as long as evidence of any of the following circumstances is provided:

  1. the product was not put into circulation by the relevant manufacturer or importer;
  2. having regard to the circumstances, it was to be expected that no defect existed at the time at which the product was put into circulation;
  3. the product was not manufactured for sale or for any other method of distribution for an economic purpose, or was neither manufactured nor imported, supplied or distributed in the course of a professional or business activity;
  4. the defect was the result of manufacturing the product in accordance with mandatory rules in force; or
  5. the state of scientific and technical knowledge at the time of putting the product into circulation was not such as would enable the existence of the defect to be discovered (i.e., the 'state-of-the-art' defence).

Under this exemption-of-liability clause, damage caused by a defective product is not compensable where the state of scientific or technical knowledge at the time the damage was caused was not such as would have enabled the damage to be avoided.

Therefore, manufacturers whose production activity adheres to the scientific and technical knowledge available at the time of putting their products into circulation will be relieved of liability provided that the state of scientific and technical knowledge at that time was not such as would have enabled the discovery of the defect.

Some scholars suggest that reliance on generally known empirical knowledge is not enough for manufacturers to successfully prove this exemption of liability cause. Manufacturers need also to ensure that they rely on state of the art scientific knowledge and research. This is tantamount to an implicit duty on the part of manufacturers to conduct research into the safety of their products whatever the manufacturer's turnover, market position or financial resources.

There are two product types where manufacturers will be liable despite having conducted their activity in accordance with the state of scientific and technical knowledge available at the time of putting their products into circulation: drugs and foodstuffs meant for human consumption. This means that the law imposes a more stringent and direct duty to conduct research into the safety of these products.

In addition to the grounds for exoneration listed above, Royal Legislative Decree 1/2007 also contemplates the possibility that a manufacturer's liability may be reduced owing to the intervention of third parties or of the injured party, and in the latter case the manufacturer's liability may not arise at all.

Indeed, if a third party has intervened in the manufacturing of the product, the manufacturer who would have paid any applicable indemnity sum would be entitled, by means of a 'recovery or repetition action', to recover from the third party that party's share of the cost of the damage.

With regard to intervention by the injured party (fault of the victim), the manufacturer must prove that the damage would not have occurred without the injured party's intervention, or that the injury or damage caused would, at least, not have been so serious.

iv Personal jurisdiction

As a member of the EU, Spain is subject to the provisions set out in Article 7.2 of the Council Regulation 1215/2012, on jurisdiction, recognition and enforcement of judgments in civil and commercial matter. Under that article, any person who has suffered damages as a consequence of a defective product can sue any EU manufacturer before the courts of the country where the harmful event has occurred or may occur. That will normally coincide with the courts of the claimant's own domicile.

The same rule is set out in Spanish law in connection with cases involving non-EU manufacturers. Therefore, foreign manufacturers are subject to Spanish jurisdiction provided that the damages caused by the defective product have been caused within the Spanish territory.

However, where the product has not been manufactured in Spain, and has not been sold or advertised in Spain, but the injury occurs within the Spanish territory, it may be argued that the harmful event has not properly occurred in Spain (i.e., while damage as such will have occurred in Spain, the harmful effect – the putting into circulation of a defective product – may not be understood to have occurred therein).

v Expert witnesses

The Spanish Civil Procedural Act provides for the expert witness who is a person having the technical, scientific, artistic or practical knowledge of the relevant issue, as well as the direct knowledge or news of the facts or events as a witness.

As a general rule, experts' reports should be filed together with the initial writs of claim and of defence; however, a number of exceptions are set for cases where special circumstances exist.

Thus, if a plaintiff shows that the proper defence of his or her rights prevented him or her from delaying the filing of his or her claim, he or she may submit an expert report subsequently, provided that he or she announces it in the writ of claim and the report is filed prior to the pretrial hearing. Logically, this possibility is absolutely limited, in principle, to cases of statutory limitations taking into consideration that the defendant has only 20 working days to file the brief of response, it can file it five days prior to the preliminary hearing, provided that it justifies that it could not be obtained before the expiration of the term provided by law to file the defence brief and it announces its filing in the brief of response.

If the need for expert witness evidence becomes manifest in view of the pleadings contained in the defendant's writ of defence, or in view of the complementary pleadings made by any of the parties prior to or at the preliminary hearing, the parties may provide any such expert-witness report until five days before the start of the trial.

Moreover, any of the parties may prefer to request from the court the appointment of an expert but it should do so, expressly, in its initial writ.

In principle, expert reports, as any other mean of evidence, must be proposed by the parties; however, the law provides that the appointment of an expert by the court can also be requested when the need for expert testimony becomes evident either in view of the pleadings contained in the writ of defence (in which case only the plaintiff may request it) or in view of any complementary pleadings by any of the parties before or at the preliminary hearing.

vi Discovery

The Spanish legal system does not provide for a general disclosure procedure.

However, the law does provide for coercive measures in relation to document disclosure in two specific situations.

In the event that preliminary proceedings have commenced, the law provides for the option for the court to enter and search premises to obtain certain documents requested by the plaintiff in cases where the person or entity to which they refer, or who is in possession of the documents, refuses to disclose them.

During ordinary proceedings, the law provides for the option to request from the other parties disclosure of documents referring to the object of the proceedings. Should the party or parties unjustifiably refuse to disclose the requested private documents, the court may either attribute to the document the evidential value alleged by the requesting party, or issue an express injunction for the documents to be furnished, when it is deemed advisable given the nature of the documents, the other evidence brought to the proceedings and the contents of the allegations and claims made.

However, unlike in preliminary proceedings, here the law does not provide for the entry and search of premises in the event of a refusal to disclose documents. However, the party who refuses to disclose documents required by the court may be in contempt of court, which is characterised as a criminal offence.

vii Apportionment

Spanish courts may apportion liability in those cases in which several agents have contributed to the damaging event,where it is possible to determine the specific level of contribution of each agent; however, market share liability has not yet been applied by the Spanish courts.

On the other hand, in those cases in which it is not possible to determine the specific level of contribution of each agent to the damaging event (while it is certain that they all contributed to it to some – unknown – extent), courts may find all the agents liable jointly and severally.

In the case of merger or acquisition of the manufacturing company, the beneficiary of the merger or acquirer undertakes any potential product liability incurred by the acquired company as a result of its manufacturing and putting into circulation of unsafe products. The aforementioned succession of liability does not occur, however, where a company purchases a brand or a producer's product line, but the producer continues to exist as such.

viii Mass tort actions

The Spanish Civil Procedure Act instituted a system of collective actions whereby certain consumer associations can exercise a legal action on behalf of (1) either a determined (or easily determinable) or (2) undetermined number of consumers who have sustained injuries or suffered a loss as a consequence of consuming a product or using a service.

The Civil Procedure Act states that if the number, identity and specific circumstances of the aggrieved consumers are determined or are easily determinable at the declaratory stage of the proceedings, both the consumer associations and the groups of aggrieved consumers by themselves (i.e., they do not need to be represented by a consumer association) hold capacity to sue on behalf of all the aggrieved consumers. In this regard, the group is considered to be legally constituted as the representative plaintiff (i.e., as the plaintiff in the proceedings) when at least 50 per cent of its members have joined it.

In turn, only the consumer associations that are members of the Spanish National Consumer Committee have legal standing to file legal actions on behalf of an undetermined number of consumers.

Although the specific requirements that a collective claim must fulfil to be accepted (as it happens with the class actions) are not regulated, the Civil Procedure Act requires that the damaging event be the same.

In the case of joinder of actions, which also exist in the Spanish regulations, a plaintiff can aggregate different legal actions against different defendants provided that the issues of fact that underlie each of the actions are sufficiently common. Pursuant to this regulation, the damaging event does not need to be the same, but there must be a connection between actions. Taking into consideration that each case can be somehow different, although must be connected, the limit of this type of action is the procedural economy principle.

ix Damages

The Spanish civil liability system is based on compensatory grounds. Consequently, indemnifiable damages should match the impairment or loss suffered by a person as a result of a given event or fact, whether the impairment or loss affects the person's natural vital attributes or his or her property or assets.

Indemnifiable damages include both strictly economic damages and also 'non-material damages' (including, for instance, for suffering or pain).

Punitive damages are not contemplated in the Spanish legal system.

Royal Legislative Decree 1/2007 establishes an accrued liability limit of €63,106,270.96 (this is a global civil liability for producers for death and personal damages caused by identical products affected by the same defect).

Damages in respect of the cost of medical monitoring can be recovered.

Additionally, according to the Spanish laws on torts, nothing prevents a claimant from seeking compensation in kind (in natura as opposed to monetary compensation). In this regard, to the extent that it could be understood as a means of compensation in kind in connection with mental damage (suffering or anxiety), medical monitoring might be accepted as a form of compensation.