CajaSur, through it’s affiliate Prienesur, has decided not to grant the prize to the winner of the Arenal Golf apartment lottery. The winners, a British couple currently living in Antequera, have decided to hire lawyers to sue the company for refusing to honour the lottery draw result.

The draw was envisaged between Andalucian Dream Homes (ADH) and Prienesur among property purchasers and was signed in the presence of a Marbella notary public. Months after the draw, the winners tried to force ADH and Prienesur to deliver the apartment but was told that talks to agree on the procedure were under way and consequently had to wait.

Three years later, talks seem to still be underway as nothing has moved forward. ADH owners have affirmed, on many occasions, that they will pay Prienesur 50% of the value of the apartment as soon as the developer transfers ownership to the legitimate winners. Prienesur, on the contrary, remain suspiciously silent.

After being instructed by the buyers to enforce the lottery draw result, we decided to telephone Mr. Dugo, manager in charge of developments, to seek his opinion. His answer was plain but shocking: “this matter is not among my priorities at this time but will look into it”.

From a legal viewpoint it is clear that both companies are liable to deliver the prize but only Prienesur actually owns it and so a legal suit will have to be directed against them, without prejudicing their right of recourse against ADH (who in spite of being under administration, apparently still wish to comply with their part of the deal).

More often than is desirable some of my colleagues tend to overindulge in optimism when providing a legal opinion on a soon-to-be litigation matter. You can often hear and read on online forums the words “You have a strong case!“. This sort of a ‘closer’ phrase when selling services can bring about nasty surprises, especially if the judge thinks otherwise.

So I tend not to use this language when dealing with my clients, and will, on the contrary, give them a more elaborate opinion which will invariably include playing the devil’s advocate and exclude encouraging clients to file a case. Let’s not forget that the opposing party will also be assisted by expert legal advice who knows the law, case law and how certain judges perceive different types of disputes.

In my opinion any lawyer needs to be very frank and open about the possibilities of obtaining a favourable ruling and should provide a per cent ratio of success, which even in the most blatantly clear case should not exceed 75% (so run away from the 95% success rate claims, and do it quickly!).

Litigation is a double-edged sword that can turn out to be very expensive for our clients, especially if a case is lost and therefore we (lawyers) should contemplate all -legally- available options prior to dragging our clients into courtroom, with their best interests as the main motivation and the legal fee bill as the last!