Spanish Legal System

There is a possibility to claim on costs in that case as there is Case Law establishing that costs also need to be paid by the party who loses the cases substantially, which means that the portion which has not been lost is insignificant.

And where case law  and Supreme Court Doctrine is being significantly delayed by manipulative ploys to flood the system with appeals in the interim Maria, where resources become over stretched and inconsistent rulings come into play across differing regions....where does that come into the equation of fair appropriation of costs in this scenario?

Unnecessary appeals ( whatever the intention is behind) are punished with interests and costs against them.

Inconsistent rulings across different regions need to be dealt by the Cassation Appeal at the Supreme Court, which, as mentioned in this other thread, is being reformed.

How do you determine what is an unnecessary appeal when delays have become so significant as to impact case law in  this way?

Also, in the absence of effective reporting and monitoring mechanisms is there not also a need for specialised courts to counter rulings that do not take SC rulings into account?

Maria said

There is a possibility to claim on costs in that case as there is Case Law establishing that costs also need to be paid by the party who loses the cases substantially, which means that the portion which has not been lost is insignificant.

Is there a reference to this Case Law that I can use as my Administrators are insisting that it is normal in Spain for the plaintiff to pay its own costs even if 97% of claim is awarded.

Im advised that only 100% awards can claim costs.

Still confused.

My whole point is that it appears to be NO deterrent for a defendant to see any claim taken into court as they have little else to lose in terms of costs above any compensation in most instances

Unnecessary Appeals are determined by each Court in regards to specific case Law existing when the Appeal was lodged. This way they decide on imposition of legal costs.

Lawyers need to be in charge of Appeal on those rulings which does not take SC doctrine into account. That is our job. Then Courts need to go a fair appreciation of arguments brought to them.

Hugh_Man: PM so I can send to you specific Case Law on this.

What is deemed an unnecessary appeal when case law and SC doctrine is being significantly delayed in this manner? 

Are appeal judges now bound to review SC rulings achieved in the lengthy interim periods that were not available to be quoted in the original appeal writing?

In other words how are innocent claimants protected from the impacts of delays that were totally out of their control?

Also in these lengthy interim periods are appeal judges able to review the whole scenario since deposit of monies, where innocent claimants have been subjected to delays that impacted timely enforcements, abusive use of AVALS and the like. At what point does the appeal judge ever gain an appreciation of the whole scenario that the innocent claimant has been subjected to since depositing their monies under this law intended to act as guarantee?

Surely all of these arguments should be covered by interest being consistently backdated to date of deposit as per the original articles in law?

Every Court ( First Instance or Appeal) needs to be in full and updated knowledge of existing Case Law on the matter being proposed to their decision. This is called the " Iura Novit Curia" general principle of Law:https://en.wikipedia.org/wiki/Iura_novit_curia 

There is case law expressly backing that all the period ( where a claimant have been claiming for a refund before the developer, acting within a  fruitless Creditor´s meeting process...) needs to be included in the dating of interests against the Bank. The claimant should not have been forced to take that frustrating, lengthy route if Bank had ensured the existence of a Bank Guarantee.

If there was a General Bank Guarantee but it was just that the individual title was not provided, the burden of the necessary judicial process can be claimed against conveyancing lawyer, if the buyer used one.

Thank you Maria.

Can I query what do you mean by the phrase "individual title" was not provided?

Individual certificate of  being covered by the Bank Guarantee/ Insurance policy

M

To clarify this further Maria.. . 

Does this mean that you can never gain interest from the Bank, backdated to date of deposit if you have a general bank guarantee without any individual guarantee and instead have to take action against the original conveyancing lawyer to gain interest backdated to date of deposit? Isn't this already covered by SC rulings and case law associated with Ley 57/68, regardless of whether it is a general or individual guarantee?

Or are you just referring to the process required ( against original conveyancing lawyer's legal indemnity insurance) in order to regain COSTS associated with any prior action taken against the developer, I.e. legal action prior to a subsequent bank claim?.

This message was last edited by ads on 29/11/2017.

The response I received from the Legal team at our Administrator following suggestions on who should bear the costs of an award made in court.

Diffferences in Autonomous Regions perhaps?

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Murcial Provincial Court  ruled that every party had to pay their legal costs.  Probably, other provincial courts would have decided that with that percentage the building developer paid the Community’s legal costs, but unfortunately this was not the case. 

Thanks for the judgements. We knew some of them, we will analyse the rest.

Ads: I refer to any extraordinary cost faced by a claimant lacking its individual guarantee. The declarative rights ( as against enforcing rights when having the individual title) were much more risky, difficult and costly to exercise than the simple enforcement of the Guarantee if that had been in place.

There is a cost/damage suffered due to the lack of individual guarantee which is not covered by the restitutory condemnations that Case Law has elaborated with the time for buyers lacking them. Someone needs to answer for this.

Thank you Maria. More questions I'm afraid. ;)

In the absence of individual guarantees but with a generic guarantee in place,  has there never been an opportunity to date within lawsuits against the generic Banks to argue for recognition of these additional costs as part of the lawsuit against the guarantor bank, to enable the judge to be fully aware of all the facts laid before him/her? 

To be honest I have never understood why a generic guarantee should be treated any differently than an individual guarantee in terms of enforcing rights, as a guarantee is a guarantee! But given your statement that it is not treated in the same way then the following questions arise.....

 If , in the absence  of individual guarantee(s) guarantee rights fall upon the Bank that issued a generic guarantee, surely they become ultimately culpable for all associated costs and interests re return of monies since date of deposit and non provision of individual guarantee, since they had administrative responsibility from the outset to ensure deposited monies were adequately protected, with all due legal responsibilities thereafter, do they not?

Surely the generic bank can't pick and choose what it is legally liable for, once breach and contract cancellation have been fully proven, can it, if from the outset they had ultimate administrative responsibilities to protect all deposited monies? 

Why have the judges not recognised these legal responsibilities of guarantors from the outset?