The question for any foreigner considering litigation in Spain is: can I take legal action in Spain effectively – without it costing a fortune and an age to resolve?
Most foreigners know very little about the Spanish legal system and, as a consequence, it is not uncommon for potential litigants to throw their hands in the air and avoid legal action – even though they have a winnable case.
Despite the commonly held fears of delay and expense, in reality, legal action in Spain is workable and the timings of major legal actions are generally not too far off those of the UK court system. In the latter, cases can take up to two or three years to bring to trial and this is, more or less, true of many court cases in Spain. That said, timings can depend upon the individual court dealing with your case. Waiting lists and the volume of work that a court has to deal with vary not only from region to region but also within the court building itself. This means that where a local court house has a number of courts within it, waiting times will vary depending on the actual court that you draw.
As to cost – well, litigation is never cheap in any country. However, Spain is, as in so many other things, considerably cheaper than the UK in terms of legal costs. They are certainly not prohibitive and the legal professionals involved tend to be considerably cheaper than their North European counterparts.
Needless to say, just as in the vast majority of building booms, Spain has multifarious property disputes and construction problems. Indeed, many foreign property owners now find themselves in having to seriously contemplate taking legal action through the Spanish courts to remedy their problems.
So, what should you be thinking of before you take legal action?
The essential first step is to equip yourself with a lawyer who specialises in litigation and specifically in the particular area of litigation involved. So, if you have a construction dispute then must make sure you go to a lawyer who specialises in this area rather than, for example, employment litigation or import/export disputes.
Many lawyers offer an initial consultation, free of charge, providing you with an opportunity to identify your legal standing and to assess whether taking further action is viable. Certainly, engaging with a lawyer at an early stage can lead to the resolution of a dispute before any legal formal action is necessary. In any event, it invariably ensures that you are in the best possible position should you have to pursue the matter through the courts.
Winning a legal action, of course, is all about having sufficient evidence to prove the merits of your claim before a court. Your lawyer will assist you in assessing whether there is enough evidence to back up your claim, preferably this will be in writing in the form of a contract, letters, invoices, e-mails and experts reports etc.
Your lawyer will further be able to advise you on the chances of success and the possibilities of recovering the monies awarded to you on successful conclusion of an action.
Construction litigation is a specialist area and is certainly not `black and white´.
Indeed, many people contemplating an action against a constructor, mistakenly, see the question of a constructor’s solvency as a major stumbling block, yet fail to take into account that there are a wide range of parties involved in the construction process – that may be called upon to answer their claim. Typically in most modern building works such parties may include the promoter, the architect, the technical architect, the geotechnical company, and the actual construction company itself. The professional parties involved will normally carry professional indemnity insurance and, of course, the building itself may benefit from a Decenal (10 year) building insurance.
Although the process of pursuing a legal action may seem daunting, particularly when in a foreign country, the road is often not as arduous as it may first seem and can often provide you with an appropriate redress for your loss.
Without doubt, you should not just walk away from taking court action in Spain. It can work and can be the only way to redress major problems. Just make sure that you have right professional advice and that advice is from experienced professionals…
Of course, if you want to know more – or need help in resolving a building/construction issue – then please do not hesitate to contact me.