What Constitutes Reckless and Imprudent Litigation
Some 12 months ago we were dumped by a client who was buying an off-plan unit in the development known as Bahía de las Rocas. It was no surprise that the newly acting “scavenging” lawyer, was operating from the expat-legal-gossip omnibus portal known as Eye On Spain (www.eyeonspain.com), wherefrom she had lured our client and probably told her how deep was our tie with the introducing agent, how horrible the developer was and how biased we were as a firm.
Our advice had been consistent throughout the transaction, advising the client that we could see no grounds for pulling out. She had tried to convince us in turn that, according to what the agents had told her, the property should have had a certain orientation, with views to a certain place. We spoke to the developer to verify this but could not find indications of any contractual infringement from where to successfully launch a claim.
Some months after we received the standard fax from the above lawyer asking for all the documents, and soon after the developer’s lawyer summoned us to Court to give witness statement. Out of curiosity we picked the phone up and called the developer, to find out that they had been sued not for the property having the wrong views but for, and here we go… delayed completion!!
But something was not right in all of this because, according to some simple calculations made with our desktop Casio calculator, the delay was of…cero days!!! Our curiosity went even further and, when reading the claimant’s petition, we noticed that it looked like a copy and paste piece of work because it made no sense whatsoever. How could any lawyer in his right mind consider NO delay as a fundamental breach of contract? What advice did this lawyer give to the client when offering her legal services? How could this lawyer, when cross examining us, ask us questions which answers directly exposed the entire satisfaction of the client with the property? But the funniest thing of all was that our client admitted in Court that she had been at all times informed and updated by us of the course of the works, without her manifesting any dissent.
The outcome was as predictable as clockwork: The judge ruled in favour of the developer, and sentenced the claimant to pay the legal bill. (An ‘anonymized’ copy of the ruling is available upon request.)
The legal conclusions of this botched attempt to trick the judges can be summarized as follows:
- Contractual extensions on property transactions are legal.
- Force majeure and Acts of God grounds for opposition are valid under Spanish law in case of non-performance.
- Lawyers should do a minimum pre-hearing preparation before entering the Court room if only to avoid, when cross-examining the previous lawyers, look very silly.
- Lawyers should tell their clients that they can, and sometimes should, lie in Court when being cross-examined, because the other party will most certainly lie too! (there is no such thing as perjury in Spain).
- Generally, lawyers should make their clients sign a disclaimer when persuading a client to start a Court case with no options whatsoever of winning a case.
From an economic point of view losing this case will mean a legal bill of between €20K, and nothing achieved. Too bad for reckless litigators!
Thanks for publishing about our work.
1.- The Court decission, one among the few lost by us in this type of cases, is a First Instance decission which is under appeal now.
2.- A member of your firm was a witness against your former own client.
An in addition, in this case, there is an alternative solution, through challenge of the penalty clause they have applied which will give to the client very similar results.
Good luck with your work Antonio!
Maria L. de Castro
Thanks for posting. It is funny you have identified yourself with the referred lawyer, when the post does not mention any lawyer in particular. However, and in strict accordance with the Law Association rules, we will not disclose the name of this lawyer.
Answering you comments:
1. Judging by fact, if this lawyer thinks a claim based on wrong grounds can be won, then she is far more gullible than the client who hired her. In a few months the outcome will be known, but in our opinion there is far more hope than confidence that it will be favourable to our ex-client.
2. We have attended to many court hearings as witnesses and always telling the truth, as the law requires. Are you implying we should not do as the law says?
Regards
Hello Antonio:
We have won a good number of similar cases both in First Inctance and in the Appeal Court. Even though, if it happened that the case were lost in Appeal, we have a clear back-up action( with enough Law and Case Law) which will very probably give to our client a very similar result.
Regarding attending Court as witness of an ex-client: if you ever want to avoid it, without breaching the Law, you just need to appeal to “proffessional secrecy”.
Again, good luck with you work!
This lady reminds me of the story of the naked king.
Thanks Derek. We have already mentioned how much we saw the situation of foreigners unprotected to the Andersen´s tale:
If you want to read about this, you can click on here :http://www.eyeonspain.com/blogs/costaluz/787/the-emperor%C2%B4s-new-cloth.aspx
Not exactly what I had in mind. Perhaps I got the gender wrong…
And thanks for the nice comments about my site Antonio, although I’m not sure everyone would agree with you.
Hello Justin, you obviously know the reasons why many lawyers are very unhappy with your site but as piece of constructive advice I will add that in my opinion it could have been much better than it is now!
It is so interesting to run a website that makes many lawyers unhappy and so many regular people so…. satisfied and happy!
Good for EOS Justin!
Antonio
I have no axe to grind with your company and even have issues with E.O.S when I was a poster where I was set up and banned several times for none other than speaking out at those that have no interest in Spain other than to play games
I am sorry to say Antonio similar games you are now playing.
There are hundreds if not thousands of corrupt solicitors that are a disgrace to their profession. so why not attack those.
Surely you have enough work to understand that we all have the choice to use who we want.
For your information I have not used Maria or even know her but your attack does sound like sour grapes and like those that play games on their forum I would advise Maria not to take the bait.
Jim Allen
Hello Jim,
Nice to hear from you.
It is wrong to consider that hundreds if not thousands of lawyers are corrupt because it is not based on fact but on speculation. This comment Jim is not appropriate on a specialized legal forum because it is a sweeping generalization that lacks proof and is bound to offend the legal profession as a whole.
Having said this and going to the second part of your post I will add that I am not against law practitioners pitching their clients in whichever way they deem correct so long as they a) don’t base their business model in a form of clientele poaching which capitalizes on desperation (as with hundreds of off-plan buyers eager to pull out) and b) provides truthful and independent legal advice, whether positive or negative in respect of the interests of the clients.
Thank you for your reply Antonio
If you are trying to defend the reputation of Spanish Solicitors or the justice system then its a game you will lose.
Your reason to attack another solicitor on a open forum is your concern.To me and its seems yet more ambulance chasing.
Please dont insult my limited intellegence.
As I said I have not axe to grind and feel thats lots of the work you do is very imformative.
Think hitting below the belt is something to rise above.
Jim Allen
Elviria. Marbella
Won yesterday in Malaga´s appeal Court. On the same basis Antonio considers rekless and imprudent.
Have a great weekend!
Case won in the Malaga appeal Court this week, on the same basis Antonio considers reckless and imprudent !