The client must be warned of the risk of being ordered to pay the costs of legal proceedings

Legal costs

20 / Jun

Before initiating legal proceedings, the client must be duly informed of the risks that he may incur as a result of such a decision, because if the judge rejects his claim, he may be ordered to pay the other party the costs or fees incurred in the trial.

Court costs are regulated in art. 394 of the Ley de Enjuiciamiento Civil (LEC). This article states:

Article 394. Sentence to pay the costs of the court.

1. In claim procedures, court costs shall be imposed on the party whose claims have been rejected outright, unless the court finds, and gives reasons for its finding, that the case raises serious doubts of fact or law.

In assessing whether there is a legal doubt, the case law in similar cases shall be taken into account.

2. In the event of the claims being upheld in part or dismissed, each party shall bear its own costs and half of the common costs, unless there are grounds to award them to one of the parties on the grounds that the latter was reckless in bringing the proceedings.

3. Where costs are awarded against the unsuccessful party by virtue of paragraph 1 of this Article, the latter shall be required to pay, out of the share of lawyers and other professionals who are not subject to a fee or charge, only an aggregate sum not exceeding one third of the amount of the proceedings, for each of the parties to the proceedings who have obtained such a judgment; for these purposes only, inestimable debts shall be valued at EUR 18 000, unless the court decides otherwise having regard to the complexity of the case.

The provisions of the preceding paragraph shall not apply if the court finds that the party ordered to pay the costs is frivolous.

If the person ordered to pay the costs is entitled to free legal aid, he shall be obliged to pay the costs of defending the other party only in the cases expressly provided for by the Law on Free Legal Aid.

4. Under no circumstances may the Public Prosecutor’s Office be ordered to pay the costs of proceedings to which it is a party.



In most cases, the court will order the party whose claims are rejected to pay the costs of the proceedings.

After reading this article, it should become clear who is obliged to pay the following costs:

Legal costs incurred during the trial shall be paid by each of the parties.

Nevertheless, the payment of these costs must be decided at the end of the proceedings. It is the judge who decides in the final judgment. According to art. 394 the party whose claims are totally rejected is usually ordered to pay the costs.

It can also happen that the claim is partially awarded and that each of the parties pays its own costs.

Finally, it may happen that the judge considers that there are doubts, factual or legal, on the basis of which he believes that the parties have acted under such doubts, and he may then decide not to rule on the case, even if one of the parties is awarded all of his claims.

Well, what would appear to be good intentions on the part of the lawyers is to consult with each other in order to overcome further differences and get paid what is due. Nevertheless, in Spain there is a special (and unfortunately slow) procedure whereby the lawyers of the Administración de Justicia carry out such an assessment. We can always resort to this procedure if no agreement is reached.

If you look at other countries, such as the USA or the Netherlands, it is the judge himself who quantifies these costs in his judgment and who recovers the litigation costs directly from the debtor, so that the judicial process is inevitably faster than with us by avoiding unnecessary delays. But fortunately or unfortunately, we are in Spain.

Once the costs have been estimated by the court’s counsel, the person ordered to pay the costs must pay them within 20 days, and if not, the creditor can initiate enforcement proceedings, which, unfortunately, are also slow. The sad thing about the slowness of justice is that it is no longer fair, because it is slow, and the debtor often exploits this defect to his own advantage.



Although the LEC regulates in Art. 241 what these costs are, there are always reasons to debate what are legal costs and what are not.

Art. 241 states clearly:

The expenses that have their direct and immediate cause in the existence of this lawsuit shall be considered as legal expenses, and the part thereof that relates to the payment of the following concepts:

1.º Costs of defence and technical representation when they are compulsory1.

2.º Addition of publications or decrees which are required to be published in the course of the proceedings.

3.º Necessary deposits for lodging appeals.

4.º Expert fees and other payments to persons who participated in the trial2.

5.º Copies, certificates, notes, testimonies and similar documents that must be requested in accordance with the law, except those requested by the court from public registers and protocols, which are free of charge3.

6.º Fees to be paid as a result of measures necessary for the development of the process.

7.º The fee for the exercise of judicial power, when it is obligatory. The amount of the fee paid in the context of the enforcement of mortgages granted for the purpose of obtaining habitual residence is not included in the costs of the proceedings. Nor is it part of the other enforcement proceedings arising from those mortgages or credits, if they are directed against the distrained party itself or against the guarantors.

As is evident from a reading of the articles regulating legal costs, everything is open to debate. On the one hand, this is logical, because as lawyers we will always try to save our client money if he is ordered to pay costs.

Mª Dolores García Santos

1.This does not include cases where the intervention of a lawyer is not compulsory and where the client nevertheless prefers to be represented in this way. This means that the party who has to pay the costs would be well advised to claim that they are excluded because they are not obligatory.

2.In this case, ALL persons who acted in the litigation should be included in the “persons who intervened in the litigation”, e.g. translation costs. This is a point of discussion in all cost assessment procedures.

3.The word “analogous” may also give rise to discussion in cost assessment proceedings.