Last Updated July 15, 2019

Law and Practice

Contributed By Pérez-Llorca

Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

The court does not impose any rules on the parties in relation to pre-action conduct, nor are there any requirements on the potential defendant(s) to respond to a pre-action letter.

Legal actions expire by the running of the statute of limitations by the mere lapse of the time set forth in the law. The statute of limitations is specified in the Spanish Civil Code and the Catalan Civil Code for the territory of Catalonia and varies depending on the legal action that is being sought.

For instance, actions in rem relating to immovable property are barred by statute of limitations after thirty years. On the other hand, mortgage remedies become barred by statute of limitations after twenty years. Personal remedies for which no special statute of limitation has been provided are barred after ten years in Catalonia and five years in the rest of Spain.

The time required for the barring of all kinds of actions by statute of limitations is counted from the day on which they could be exercised, unless provided by a specific provision.

The statute of limitations on actions is interrupted by the filing of such actions before the courts, by an out-of-court claim issued by the creditor and by any act of acknowledgment of the debt by the debtor.

The “Ley de Enjuiciamiento Civil” (Spanish Civil Procedure Act, SCPA) stipulates the jurisdictional requirements for a defendant to be subject to suit in Spain. Specifically, a defendant may act in court if it is a party to the judicial relationship or the matter in dispute. This requirement does not differ between civil courts. However, there are certain cases in which, by law, standing is attributed to a person other than the party.

The SCPA also stipulates that several persons may appear in court as defendants when the actions arise from a single claim.

The proceedings begin with a claim in which the facts and the grounds in law are put forward separately and numbered accordingly. What is being requested must be presented clearly and precisely.

Together with the designation of the claimant and the defendant, the names and surnames of the court representative and the counsel for the claimant shall be given, if applicable.

When what is requested in the claim could be based on several facts or on different legal grounds or entitlements, the claim must include all those which are known or may be invoked when the claim is filed. It is not admissible to reserve an allegation for subsequent proceedings.

Once the matter at issue in the proceedings has been established in the claim, in the defence of claim or, as appropriate, in the counterclaim, the parties may not subsequently amend the document.

The procedure for informing an adversary that it has been sued is specified in the SCPA. Service of process is the responsibility of the court. Where the notice is an initial summons or order to attend, notices shall be sent to the defendant’s address. If the claimant provides several addresses for the defendant, the claimant shall indicate the order in which notice could successfully be served.

If service of process cannot take place at the defendant’s address provided in the claim or if the claimant states that they are unable to provide the defendant’s address, the court clerk can use any suitable means to investigate the defendant’s address. The court clerk may contact registries, organisations, professional associations and entities to do so.

If the defendant’s address cannot be found, or when service of process cannot take place at the defendant’s known addresses, the court clerk shall issue an order stating that notice shall be served through public notices, ie by publishing the court’s notice on the court’s bulletin board.

A party may be sued outside the jurisdiction. If service of process takes place within the European Union, the defendant may be notified pursuant to Article 8 of the Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007, on the service in the member states of judicial and extrajudicial documents in civil or commercial matters. Pursuant to such regulation, the claim must be duly translated into the official language of the place where service is to be effected or in the language that the served upon defendant(s) understands.

Service of process outside of the European Union can take place pursuant to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

If the defendant does not respond to a lawsuit, the defendant will be declared to be in default. The declaration of default will not be considered an acceptance of the claim or an admission of the facts of the claim, except in the cases in which the law sets forth otherwise.

The Spanish legal system permits representative or collective actions, such as class actions, as long as the actions arise from a single claim.

Notwithstanding the individual standing of those aggrieved, legally constituted consumer and user associations will be authorised to defend the rights and interests of their members and of the association in court, as well as the general interests of consumers and users.

In proceedings filed by associations or entities constituted for the protection of the rights and interests of consumers and users or by affected groups, those who have been damaged due to being consumers of the product or users of the service which gave rise to the proceedings shall be called to appear in order to assert their individual rights or interests.

Class actions in Spain are opt-in. Specifically, when the proceedings involve:

(i) determined or easily determined damaged parties, the claimant(s) must have previously notified those concerned of their intention to file a claim. In this case, after the call, the consumer or user may participate in the proceedings at any time, but may only conduct the procedural acts which have not been precluded.

(ii) an indeterminate number of persons or a number which is difficult to determine, the call shall suspend the course of the proceedings for a time limit which shall not exceed two months and which shall be determined by the court clerk in each case depending on the circumstances or complexity of the event and the difficulties concerning the determination and localisation of those damaged individuals. The proceedings will continue with the intervention of all the consumers who have obeyed the call, and the individual appearance of consumers or users shall not be allowed subsequently.

The attorney must provide clients with a cost estimate of the attorney’s fees, as soon as it is possible for the attorney to determine such costs.

Pérez-Llorca

Paseo de la Castellana, 50
28046 Madrid

+34 91 436 04 20

+34 91 436 04 30

info@perezllorca.com www.perezllorca.com
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Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

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