Product Liability 2009 - Arnold & Porter LLP

Lovells LLP Spain
incidental expenses, i.e. the procedural costs which are strictly
necessary pursuing the suit, and the other expenses incurred by a
party in respect to the dispute.
(a) Pursuant to Article 394 of the Spanish Code of Civil
Procedure, the successful party may be able to recover the
procedural costs from the losing party if (i) all claims made
by the successful party are accepted, (ii) all claims brought
by the losing party are rejected, and (iii) provided that the
court does not find that the case raised serious factual or legal
doubts. The recoverable incidental expenses can be, e.g., the
translation costs, the experts’ fees, the witnesses’ expenses,
the counsels’ fees and proctor’s fees.
The only legal limit to these expenses is where there are
several successful parties. In such case, the losing party will
only have to pay for these concepts up to one third of the
amount in dispute to each of the successful parties. This
limit will not apply if the court finds that the losing party
behaved in a reckless manner.
(b) Any other legal costs incurred by a party, such as the legal
fees when they are freely determined between the lawyer and
his or her client, are generally not recoverable. The lawyers’
fees are usually determined in accordance with the criteria
established by the bar associations.
(c) Court fees are not recoverable.
7.2 Is public funding e.g. legal aid, available?
Legal aid is available in Spain and consists in a financial aid (total
or partial) in proceedings before State courts (direct payment by the
State to the appointed counsel).
7.3 If so, are there any restrictions on the availability of public
funding?
Jurisdictional aid is granted to individuals who can prove that their
income is too low to afford access to justice.
ICLG TO: PRODUCT LIABILITY 2009
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7.4 Is funding allowed through conditional or contingency fees
and, if so, on what conditions?
Contingency fee arrangements (“quota litis”) have been forbidden
in Spain until very recently. The Spanish Supreme Court rendered
a decision on 4 November 2008, which recognised the validity of
strict contingency fee arrangements.
Nevertheless, until now it was possible to enter into a fee agreement
with the client stipulating an increase of fees in the event of a
particularly positive result and the calculation of which is set out in
advance.
7.5 Is third party funding of claims permitted and, if so, on
what basis may funding be provided?
Spanish law does not establish any provisions that forbid third
parties to fund the victim’s claims.
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in Spain.
It is worth highlighting the recent decision from the Spanish
Supreme Court admitting the validity of contingency fee
arrangements where the lawyer’s fees will exclusively depend on
the result of the case (“quota litis”) since these kind of fee
arrangements were previously forbidden.
This possibility might entail an increase of class actions
proceedings regarding product liability issues.
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