Manuel Medina, Managing Partner of Medina Cuadros Lawyers, offered their opinion on the procedural costs and their distribution for a report they have published Confilegal"I've always been a lawyer with fixed criteria. I've never been a lawyer for costs, but rather for litigation. Costs are an accessory element that the loser pays, and in this case, I've always rebelled on the issue of procedural costs."
Medina: I was never a costs lawyer, but I was a litigation lawyer.
For this veteran lawyer, it's possible that changing the model to one where the principle of recklessness prevails could somewhat reduce litigation. "In the end, if the costs are left to the judge's discretion, it could greatly affect our profession."
The possible change in the criteria for procedural costs divides legal practitioners
Who should pay the procedural costs of a procedure? This is the question we asked various legal experts following the statements made by the president of the General Council of the Legal Profession (CGAE), Victoria Ortega, during the presentation of the Strategic Plan of said entity, when she suggested that she was in favor of breaking the system established since the last Civil Procedure Law from 2001, which speaks of criteria of expiration (whoever loses pays), for that of recklessness, more subjective about the misuse of justice.
A debate that arises now, precisely at the time when the banks face thousands of lawsuits in as many Spanish courts due to the ruling of the Court of Justice of the European Union (CJEU), which will surely be followed by the costs of formalizing mortgages and other issues that have made it clear that the current Mortgage Law needs a radical change.
Catalá: We believe the current system, which defines costs based on the due date, works well. We can review it if necessary.
Upon his arrival at the Madrid Press Association, where a crowd of journalists were waiting for him for the ACIJUR awards ceremony, Rafael Catalá He responded to CONFILEGAL about the debate that the president of the Bar Association, Victoria Ortega He just put it on the table: "We believe the current system of costs based on expiration of payment is working properly, but we do not reject reviewing it, examining its actual functioning, and whether it needs to be adjusted again. We have no red lines with the legal profession in this regard, and we will sit down and work with them with complete transparency and loyalty."
Garcia-Romanillos: The system for imposing costs should be significantly improved to help reduce litigation in the country.
Joaquín García-Romanillos, once a member of the CGAE (Center for the Development of Spanish Nationalities of Catalonia) and an expert criminal lawyer, is now a partner at Aguayo Abogados. He has his own personal opinion on this controversy: "In my opinion, the current system regarding reckless driving should be improved to reduce the reckless litigation that exists in our country," he says.
For this jurist, there have indeed been significant court rulings on costs for reckless conduct, so this issue needs to be explored in more depth and better clarified. "I am aware of the concern many of my fellow lawyers have about this issue."
Changing the model would mean modifying the structure of the Spanish justice system.
For Juan Carlos Estévez, president of the General Council of Attorneys, is aware that this change in procedural costs "would change the entire structure of the Spanish justice system. These changes must be considered." This jurist favors the French system, which does not include a taxation of costs: in that ruling, the court imposes a compensation amount on the party that won the case for having to litigate. This amount can be as much as 10 percent of the total amount of the matter in dispute. Estevez Remember that this criterion has been used by the Third Chamber of the Supreme Court.
Estévez: Changing the current model of costs based on expiration would completely change the Spanish justice system.
The president of the Attorney General's Office doesn't believe this measure would particularly harm this group of professionals in our country. "It would involve addressing a significant change in mentality, one that has so far produced few rulings. This is a key issue in our justice system that would surely drag down other issues in the administration of justice."
Change the system so that there is no fear of litigation
In the opinion of Antonio Albanés, a historic figure in the Madrid legal profession, now general secretary of the Mutualidad de la Abogacía, who had his own office for many years, "it would be a matter of returning to the system that existed before, until the new one Civil Procedure Law It was passed in 2001 and helped people to not be so afraid of litigating.
It's all very well that a court order for costs exists when the claim or opposition is frivolous. However, the current system of awarding costs makes it clear that even if you're right and lose, they'll have to pay the court costs.
In the opinion of this jurist and other experts consulted by our publication, this modification would represent a new way of looking at the legal profession: "It is an experience that, as I have already mentioned, has already been had, and we would have to see how to adapt it to the new times."
Albanian: Now with the expiration, even if you are right and lose, they will have to pay the legal costs.
"I think it would help people defend their rights without fear of having to pay costs if they lose the case." For this distinguished Madrid lawyer, costs should always be awarded for recklessness, in order to prevent abnormal behavior in litigating even when they know they won't succeed in achieving their goals.
The current system works and you cannot legislate in favor of the banks.
Vicente Pascual, Lawyer and Dean of the Elche Bar Association, believes that the current expiration system is adequate. "I must think that what the president of the CGAE, Victoria Ortega, wants to improve is related to the costs in the contentious-administrative jurisdiction, where, following the 2011 reform, there is a clear problem for citizens if the target expiration date is maintained. The concept of recklessness should be reinstated in that jurisdiction because special protection for the citizen is required here.
For this jurist, the expiration criterion works well: "It's usually a deterrent for unnecessary lawsuits. The award of costs is a very important element, especially in civil jurisdiction. There's no need to open a debate here." This possible change in the costs model could benefit banking institutions, which are immersed in various legal proceedings. "The problems of banking cannot be solved by changing one law after another in a way that favors them. I don't think legislation should serve the interests of banks."
Pascual: The legislator should not serve the interests of the banks
In his opinion, no one is demanding a reconsideration of the costs in civil proceedings, which Pascual believes is a system that is currently working quite well. In his opinion, there is another solution for the banks themselves at the moment: "Banks have an easier path: comply with the judgment and pay what they owe. They are already taking too long to comply. That way, we would avoid many pointless lawsuits."
The possible change in the costs system comes at a time when banks have thousands of cases in the courts.
Civil lawyer and social media activist Verónica del Carpio, who has written on this sensitive topic, also shares a similar view. Here are the key points.
Del Carpio: It would be nothing more and nothing less than the consumer assuming his own defense costs.
In his opinion, "It's thought-provoking that right now, when there are massive lawsuits against banks that only pay out through bad faith lawsuits, this issue of changing the system is being brought up. If approved by the legislator, this would mean that if the bank doesn't want to pay, for example, what it owes the consumer due to a floor clause or mortgage formalization costs, the bank would only be ordered to pay the costs if its opposition were reckless; that is, it would mean nothing more and nothing less than the consumer assuming their own defense costs for the bank's breaches."
In that post he also alludes to the lack of transparency of the CGAE, criticized from many points of view, a situation that curiously does not say anything about in the Strategic Plan that Victoria Ortega introduced to journalists a few days ago.
"I find it intolerable that in the name of the legal profession, that is, including my own, it is said in public that "the legal profession" advocates this criterion, and without any kind of professional debate. And if I would find it intolerable even if it benefited the consumer, because opacity and enlightened despotism are never acceptable, I find it even worse when it is detrimental to consumers."
Mediation and costs, a possible relationship as well
Vicente Magro, president of the Provincial Court of Alicante for many years, now a judge at the High Court of Justice of Madrid, sees another alternative to court costs: "It can be related to the use or non-use of mediation. In Anglo-Saxon law, it must be noted that only 3 percent of disputes reach trial. In these countries, if mediation is not used, the legal costs are more expensive for those who do not use this extrajudicial method. I think it could be a way to promote mediation by reducing costs if mediation has been attempted."
Magro: Increased costs could be used if the party refused to go to mediation. I agree with the expiration system.
Judge Vicente Magro during the ACIJUR awards, where he received the “Peripheral Puñetas” award.
For this judge, "it seems obvious that whoever loses a case must bear its own procedural costs. I would go further, from the perspective of increasing those costs if an out-of-court dispute resolution procedure is not used." In this way, the issue of procedural costs would be considered a punishment or sanction for any party that prefers litigation to reaching an agreement with the other party.
Another of the attendees at these ACIJUR awards is Javier Iscar, An expert arbitration lawyer and member of the ICAM Governing Board, he offers his opinion as a lawyer on the debate over court costs: "We must realize that the passage of time forces us to adapt to changes. The current expiration system may need to be naturally corrected. We are now living in a perhaps more dialogic time, and perhaps a different approach to the matter could be possible." Regarding the current model, he acknowledges that lawyers are comfortable with it because they have been with it for a long time.
Iscar: If the concept of recklessness is introduced at the end, it would have to be objectified as a concept, which will not be easy.
In the opinion of Iscar We lawyers have to work as a company, where each client is a separate case, and where we want to provide better service to all of them. "If the current system had to be changed, another one would have to be found that was good for everyone; it can't be done overnight." In this lawyer's opinion, introducing the concept of recklessness into costs "would require objectifying this subjective concept, an issue that is always complicated to assess."
Need to unify the costs in the different jurisdictions
For its part, Jesús Lopez Medel, a State attorney, calls for a unification of the issue of costs across the different jurisdictions. Some use the objective criterion, while others use the concept of recklessness. "At the same time, I am in favor of applying the current system of whoever loses the lawsuit pays as a general criterion. However, this must be qualified and modulated with criteria that show that, given that this is a controversial issue, costs may not be awarded as an exceptional case."
Lopez-Medel: I am in favor of the current expiration system, but modulated by a judge in a minimal way in each case.
López Medel As prominent as it is in the contentious-administrative jurisdiction, one of the most familiar, the administration plays by the principle of legality and by lawyers, the State Attorneys, who handle all management in many cases. "In this jurisdiction, the so-called principle of expiration could be modulated so that the judge would take the matter and its debate into account so as not to penalize the individual with costs."
In a similar sense, it is positioned Angel Juarez, President of Lawyers and Citizens for the Rule of Law (APROED), "We understand that the current system of awarding costs creates unfair situations that can and should be corrected: The theory of absolute expiration is very relative. Based on standard practice in the courts, we contemplate a multitude of situations in which it is the discretion of the judge, and not the reality of the factual and legal assumptions raised by the parties, that determines that one of them "should have all its claims rejected" and be ordered to pay costs.
Juárez: The current system of awarding costs due to expiration of the deadline creates unfair situations that can and should be corrected.
And he adds, "Because, on many occasions, both parties are right in their respective legal arguments, but it is the judge who tips the balance, resulting in an absolute defeat for one of them when in reality this defeat is not total but partial, and yet, rule 2 of Article 394 is not applied.
For this jurist, "an award of costs would be more appropriate only in cases of manifest recklessness on the part of the litigant, bad faith as per Article 395 No. 1, and acquiescence as per Article 2, as well as in the case per Article 396 No. 1."
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