the international comparative legal guide to litigation - dispute ...

Gómez-Acebo & Pombo Abogados, S.L.P.
Spain
Spain
for the judgment without adopting the measure might
provoke that the relief sought in the main proceeding will no
longer be of any use to the claimant.
Fumus boni iuris: a prima facie impression that the claimant
has presented evidence that leads to the thought that the main
action is likely to succeed in the future.
Caution: the court only grants interim relief at the risk of the
petitioner, and thereby requests that a sufficient caution is
established to cover eventual damages if the main case is
later dismissed or the interim relief is revoked.
3.3 What are the main elements of the claimant’s pleadings?
The statement of claim must include:
The names and addresses of the parties.
The facts of the dispute, and all the documents that prove
such facts, provided the claimant had access to them.
The legal grounds, whether they are laws, regulations or case
law, on which the claimant bases the claim.
The compliance with all the procedural requirements.
The relief sought. If it consists of the payment of a sum, this
must be clearly quantified.
3.4 Can the pleadings be amended? If so, are there any
restrictions?
The object of a claim cannot be amended once it has been served on
the other party and the response or counterclaim has been filed
(pursuant to the prohibition of the mutatio libelli principle).
Despite this, in view of the statement of defence, slight changes or
complimentary arguments may be introduced in the pre-trial
hearing (in the Ordinary proceeding) or in the hearing (in the Oral
proceeding). However, the claimant cannot introduce new petitions
at this stage unless the adverse party agrees or if the court rules that
it doesn’t affect the right of defence of the defendant.
4 Defending a Claim
4.1 What are the main elements of a statement of defence?
Can the defendant bring counterclaims/claim or defence
of set-off?
The defendant must include in the statement:
What facts of the claim are acknowledged or denied.
The defendant’s own version of the facts and the documents
in support of such version.
What decision it understands the court should issue,
generally the absolution of the defendant.
The defendant can bring a counterclaim, but only if it can be
decided in the same kind of proceeding and before the same type of
court that is handling the main claim. The counterclaim can be
directed against other parties as well.
The defendant may also bring a defence of set-off, even if it only
seeks its own absolution.
In these cases the claimant, as well as the rest of the parties against
whom the counterclaim is directed, may file a statement of defence
in 20 working days from the day of service.
4.2 What is the time limit within which the statement of
defence has to be served?
The defendant must file the statement of defence at court 20
working days after the service of process.
4.3 Is there a mechanism in your civil justice system whereby
a defendant can pass on liability by bringing an action
against a third party?
The defendant may, in the same period available to file its statement
of defence, ask for another party to take part as defendant. If the
court admits the petition of the defendant after hearing the claimant,
the statement of claim will be served on the new defendant. Once
this new defendant has filed its statement of defence, the original
defendant might ask that the latter is put in its place as a sole
defendant. The claimant and the new defendant will be heard, and
then the court will decide.
4.4 What happens if the defendant does not defend the
claim?
If the defendant does not file the statement of defence within the given
period, the court will declare the default of appearance and the process
will continue without its participation. This will not be deemed as
surrender or an acknowledgment of the facts, and the claimant will
still have the burden to prove the facts on which its claim relies.
The declaration of default of appearance must be served on the
defendant, announcing that no other act will be served except the
final judgment.
4.5 Can the defendant dispute the court’s jurisdiction?
The defendant may challenge the court’s territorial jurisdiction (the
competent courts are located in another place) or its material
jurisdiction (the competent courts are other due to the matter in
dispute). The defendant may challenge the court’s jurisdiction if
there is an arbitration clause.
The challenge must be filed within 10 days of the service of process
and has the effect of staying the procedure until the court issues a
decision.
5 Joinder & Consolidation
5.1 Is there a mechanism in your civil justice system whereby
a third party can be joined into ongoing proceedings in
appropriate circumstances? If so, what are those
circumstances?
Apart from what has been explained in question 4.3, a party that
considers having a legitimate interest in the result of the proceeding
may file a petition to join the proceeding either as a claimant or
defendant. The court will decide after hearing the rest of the parties.
If the court allows the new party to join the proceeding, the joinder
may only do what the CPA allows as of the moment it joined the
proceeding, i.e., the proceeding will not be taken back.
5.2 Does your civil justice system allow for the consolidation
of two sets of proceedings in appropriate circumstances?
If so, what are those circumstances?
Pursuant to the CPA, the parties may request the consolidation of
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