a brief comparative study

The slowness of the Spanish legal system and the cost determination aspect

20 / Oct

“Nothing resembles injustice so much as delayed justice” (Seneca).

It is no news that those who devote themselves to the fascinating field of Law must recognise that the Spanish legal system has cracks, flaws and problems, whether in the procedure itself, due to lack of organisation or for other reasons.

It is not the intention of this article to provide a solution to all the problems experienced by both the professionals within the system (justice officials) and those outside (lawyers, social lawyers and prosecutors), but certainly by the most important victim; namely you, the client! We want to highlight just one small part of the Spanish system that clearly delays procedures unnecessarily.

Over the years of working within this firm, which focuses both on Spain and abroad, it has become inevitable for us to start comparing the Spanish legal system with the legal systems of other countries, even though making comparisons is reprehensible. However, in this case, it is legitimate and correct to carry out a comparative law study and we have decided to focus this article on civil procedural law and especially the cost estimation aspect.

In Spain, you get the judgment from the moment of filing the lawsuit with good luck in about one year. However, two or three years is considered normal. Should it take even longer, then it becomes a real tragedy, because the judge only issues a ruling as follows:

“that I XXX, fully upholding the claim of XXX against XXX, I must sentence XXX to pay XXXX plus legal costs”.

It is always good news if your claim as a complainant is granted in full and the defendant has to pay your costs. But what are the costs? The court does not rule on this. If you then fail to reach an agreement with the other party’s lawyer, the process of estimating costs is set in motion, using the Bar Association’s professional rates as a guide. The request for the cost estimate has to be submitted by the party that will be the creditor of the costs and its determination is in the hands of the lawyers of the administration of justice (LAJ); officials who are usually quite overloaded with work.

This process for the purpose of determining costs is not very pleasant as everything (in general) slows down. The defendant also knows this, which is why he never wants to pay immediately in order to gain extra time.

Once the LAJ acknowledges your claim, it gives the other party a 10-day period to respond. As you can imagine, the other party (almost) always files a standard objection. Once the other party does so, the LAJ forwards the request for an assessment of costs to the Bar Association of the place where the request is being heard. Since the Bar associations are also overwhelmed with work, it sometimes takes them a long time to come up with a ruling. In some cases, it took a year and a half…. Incidentally, not all Bars use the same criteria as there are no set standards or established scales in this respect. It is left entirely to each Bar’s own judgement.

Once the ruling is in, the LAJ will determine the costs. Regardless of who wins the case, the other party will be ordered to pay the costs of this particular procedure. And here you can imagine the vicious circle one can get into: succession of costs of costs of costs of costs of costs of costs…. Kafkaesque!

With any luck, the costs can be paid within 6-12 months, provided the defendant is willing to pay. If he is unwilling to pay, a new procedure of Execution of judicial Title will be initiated. This involves attachment of the assets of the defendant ordered to pay the principal and costs.

This procedural wear and tear is possible, however, because there is no uniform rule at the level of European law regulating the procedure for determining court costs and their imposition. However, it is a widespread practice in countries such as the Netherlands, Belgium, Austria and the Czech Republic, where the judge himself decides on the specific amount of court fees to be enforced.

This means that in these countries, a single authority decides which party should bear the legal costs and immediately determines their value, without prejudice to the other party’s exercise of the right of defence in case of opposition to the decision.

This principle of pleading for justice, prevailing in Spain, has turned a simple enforcement procedure, such as the determination of costs, into a never-ending affair and causes headaches for the creditor.

In the Netherlands, costs are ordered by decree if these are costs incurred before the judgment, and if these are costs incurred at a later date, these are determined by the court that rendered the judgment by decree.

In Belgium, the costs of civil proceedings are reduced and include, among other things, the costs of registering the writ of summons with the court and the costs of the bailiff to serve the writ of summons. The lawyer’s fees are limited by law according to a scale established by a Royal Decree.

In short, Belgian law provides that any judgment must contain an award of legal costs without the need for a request for a court order or a request to a Bar Association, ie:

The Court orders the defendant to pay the claimant the sum of 38,000 euro, to be increased by judicial interest at the legal interest rate until the date of full payment.

 The Court orders the defendant to pay the costs, calculated by the claimant and assessed by the Court at EUR 265.84 (costs of the summons) and 2,200 euro (costs).

 Court of Antwerp of February 14, 2012 (A.R.No. 11/1703/A).

In other words, the discussion on costs is over. Our fellow Europeans are at least six months to a year ahead of Spain!

Let us go a little further afield: in Latin America, especially in a country like Colombia, the clerk of the court who has had knowledge of the process draws up the settlement, which includes court costs and lawyers’ fees. It is then up to the judge to approve or amend it as it sees fit, without the need for any other additional procedure (Código General del Proceso, article 366).

The above is a consideration for the Spanish government, as efforts can always be made to facilitate and speed up judicial and administrative procedures. In this case, these are uniform rules. Establishing uniform and specific scales based on objective criteria in an ex officio settlement by the judge who makes the decision and knows best the merits of the dispute.

Camila Lizarazo González

Mª Dolores García Santos