First published 30th January, 2001

LAW 1/2000 OF CIVIL PROCEDURE of 7TH JANUARY

The new Law of Civil Procedure ("LCP") entered into force on 8th January, 2001 replacing the previous Law of Civil Procedure of 1881. The principal motive behind the enactment of the new law is to try and ameliorate the serious problems resulting from the lengthy delays affecting legal proceedings. The underlying emphasis in the new law is on agility, oral hearings, immediacy and a reduction in the classes of proceedings themselves. Inevitably all this implies that the advocate will have to spend more time on each case as well as giving it more direct personal attention.

The principal differences between the old and the new proceedings are:

LAW OF 1881

Declaratory Proceedings

    • Larger Amounts (more than 160 million Pesetas)
    • Smaller Amounts (more than 800,000 Pesetas)
    • Cognition (more than 80,000 Pesetas)
    • Oral (more than 80,000 Pesetas)

Special Proceedings

    • More than 60 classes

LAW OF 2000

Declaratory Proceedings

    • Ordinary Proceedings (over 500,000 Pesetas and unliquidated amounts)
    • Oral Proceedings (less than 500,000 Pesetas)

Special Proceedings

    • Proceedings on Negotiable Instruments
    • Claims for amounts due
    • Claims for the Judicial Division of Property and Assets
    • Capacity, Family Law

 

DECLARATORY PROCEEDINGS

The principal differences between the old law and the new law are twofold. First the new law has simplified considerably the different types of proceedings. Secondly the proceedings in each case are primordially ORAL in contrast to previous system under which the written form prevailed in declaratory proceedings. Consequently, for example, in the case of Oral Proceedings the parties must be represented by an Advocate and assisted by a Procurator (except in those oral proceedings where the amount of the claim does not exceed 150,000 Pts) and a court hearing is held which the parties or their legal representatives must attend bringing their evidence and witnesses.

In the case of Ordinary Proceedings the lawyers acting for the parties must attend two court hearings. The first hearing is described by the LCP as the pre-trial hearing. Matters that can be dealt with at this preliminary hearing, at which all the parties should be represented, include reaching agreements or settlements, remedying defects of procedure, specifying the questions in dispute and questions of admission of evidence to be decided then and there by the Judge. Further, at this preliminary hearing, if no additional proof of evidence is required, the Judge may proceed to order judgement. In any other case the Court will set down the day and time for the trial. The object of the trial is to hear the evidence that has been judged admissible and the summing-up of the advocates based on the evidence and the legal arguments.

This means that the court hearing is the cornerstone of both Oral and Ordinary Proceedings and the Advocates acting for the parties must be present throughout.

SPECIAL PROCEEDINGS

Claims for amounts due and owing

This special procedure (known as the "proceso monitorio") is one of the principal novelties of the LCP. This is designed to take the form of quick proceedings leading to summary judgement and execution (Arts 812 to 818). In brief a plaintiff is entitled to use these proceedings provided the debt is pecuniary, due, payable and under 5,000,000 Pts. Proceedings are commenced by lodging with the court a simple application accompanied by simple documentary evidence of the debt (i.e. invoice, CMR, delivery note etc.,). Once the application and the accompanying document(s) have been accepted by the Judge, he or she will order the debtor to make payment. If the debtor fails to pay and does not oppose the application, the Judge will immediately order execution. On the other hand if the defendant lodges a defence the proceedings will follow the course of Ordinary or Oral Proceedings depending on the amount of the claim.

In the case of this rapid debt recovery procedure we would only underline the fact that the Art 812 of LCP requires that the debt is proven by the production of:

Documentation, whatever its class or form or physical nature, signed by the debtor or bearing the debtor’s seal, stamp, mark or other sign, whether physical or electronic.

Invoices, delivery notes, certificates, telegrams, faxes or any other documents which, even though they may have been created unilaterally by the debtor, constitute the usual form of documenting the debts or pecuniary obligations of the kind that exist as between the creditor and the debtor.

Finally we need to draw attention to the fact that, even though the LCP provides that it is not necessary for the plaintiff to instruct an Advocate and Procurator for the purpose of filing the application, it is, in our view, advisable that they should be instructed from the beginning since their professional services will subsequently be required both in the case of the court ordering execution (where the defendant fails either to pay or enter a defence) and in the case of the proceedings becoming "Declaratory" on the defendant lodging a defence to the claim.

Proceedings on Negotiable Instruments

Arts 819 to 827 of the LCP provide for a legal process that, without either being ordinary or executory, offers the plaintiff certain judicial protection from allegations relating to the fundamental cause of the dispute. In effect the articles of the Law of Negotiable Instruments and Cheques that refer to summary proceedings have been amended and from now on the recovery of amounts owed on cheques, promissory notes or bills of exchange (provided that they comply with the requirements of the Law of Negotiable Instruments and Cheques) shall be by way of the Court Proceedings on Negotiable Instruments as established by the LCP.

Proceedings shall commence with the lodging of a statement of claim with the negotiable instrument annexed. The plaintiff must demonstrate that he is the legal holder of the negotiable instrument and expressly declare what he proposes (i.e. that court should require the defendant to pay, order that his assets be provisionally attached and issue the order for execution). Then the Judge, once he has accepted the legal validity of the plaintiff’s title to the negotiable instrument, will simultaneously order the defendant to pay and the provisional attachment of sufficient of the defendant’s assets to secure recovery without the need of a guarantee. On being served by the court with notice of the claim the defendant may:

  • Proceed to the payment of the principal, interest and costs and in that case the order of attachment will be lifted.
  • Within five days of being so notified, appear before the court and deny categorically that the signature is his or that the person signing had the authority to do so, in which case the Judge may order that the order of attachment be lifted and, if he considers it appropriate, order that the defendant provide a suitable guarantee.
  • Within ten days of being so notified lodge his statement of defence with the court.

The defendant’s statement of defence may be based on:

  1. Failure to comply with the formalities established by the Law of Negotiable Instruments and Cheques.
  2. Defects in the holder’s title (e.g. problems with the endorsement or possession).
  3. Invalidity of its representation as a valid negotiable instrument (falsification of the signature, lack of authority of the person signing), and
  4. Cancellation of the debt owed on the negotiable instrument (prior payment).

Afterwards a copy of the defendant’s statement of defence will be supplied to the plaintiff following which a date and time will be set down for the court hearing to which the rules governing Oral Proceedings shall apply as provided by Art. 443 of the LCP.

Finally we wish to end this short note on the new rules governing Spanish civil court proceedings introduced by the LCP by referring to one of the most positive novelties of the new law, namely the regulation of the provisional execution of court judgements. Under the LCP and in sharp contrast to the provisions of the old law, the general rule is that judgements at first instance may now be executed without the necessity of having to provide a bond or guarantee even where the losing party lodges an appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.