Lawyers Liability

Hi,

about 15 years ago I paid a Spanish lawyer to try and get my deposit back on two unfinished apartments.

I asked the lawyer were my bank guarantees valid ? He told me they were not because a "group" licence of habitation had been issued on the apartments. I spent over 20,000 euros, we went to court and won but of course the builder and developer were nowhere to be found. A while later I came across another lawyer who asked me if I had bank guarantees I said yes and I had my deposit back plus interest within 3 months. Was the first lawyer neglegent ? If so can I claim all my fees back from the first lawyer ?

Thanks

Spider   

You really need to contact a specialist legal person who will be capable of examining your particular case in detail and offering you informed choices including leagal costs etc. Costaluz lawers are on this forum albeit I've not used them myself , they do appear to specialise in cases similar to yours. Or why not run this by your current lawyer ?

regards

When professional responsibility is assessed it's not simply based on negligence it's more of a two phase analysis.  Firstly did a negligent act, error, or omission on the part of the professional person take place?  Secondly was this failure below the service, expertise, advice etc below that which could be reasonably expected compared to others working in the same sector, at that time etc

The "normal standard" in part two is most important as the professional person is not being judged against the best of his/her contemporaries, more the average.

The above is the English Law position and widely applied throughout the world.  In Spain, as a generalism the professional standards in the legal profession are substantially inferior to both the UK and most of Europe.  So presumably the test will have a considerably lower benchmark.

The other hurdle you would theoretically have is in respect of the limitations legislation (you said the event happened 15 years ago).  In the UK you have to bring an action like this within a 6 year period of the failing giving rise to the loss becoming apparent.  I'm unsure in Spain.  I had thought it would be the same, but a few months ago I asked a Spanish lawyer this question and she insisted that there were no time limits at all.  This is most surprising and does not make sense, which really just illustrates my complete lack of confidence in the Spanish legal system or the people in it.

Of course your question is purely theoretical as no one in their right mind would want to sue a lawyer in the circumstances you mention.  You would not have a hope in hell of success.  The only remote chance might be if the solicitor involved was part of an international organisation, or say had assets in the UK where proceedings might be issued.  But even that would be extremely difficult.  So take comfort in the fact that you are not alone.

Acer is absolutely right.  In the uk professional people are judged as what would be expected of a reasonably competent (lawyer, surveyor, etc.) person  

In this case though the lawyer has stated something which another lawyer says is wrong and it looks easy to look into on the face of it.   In other words it doesn't look too complicated a question.  So was it easy to research and check the answer of the first lawyer?   If so then it looks like incompetence.   

And if it was supposed to be true information, why cost 20,000 euros?   It's not adding up really.  

This link may help

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwikrcHwq-7QAhXR0RoKHRwTDmwQFggyMAA&url=http%3A%2F%2Fwww.clgeurope.eu%2Fcmsimages%2F%2FPublications%2FCLG%2520Time%2520limits%2520doc.pdf&usg=AFQjCNGavqLDAcEP9N9W4A-BawqR1adlkw&sig2=Hl3msHpwrKfYWczDYLqIHQ

Spider: In my opinion, if you had Guarantees and first lawyer did not use then, he was negligent.

Yes, surely, on the basis of the facts presented, the first lawyer would struggle to find a defence - but please can you clarify the position in Spain regarding the court action being time barred.  It was 15 years ago.

In the UK there are variations but generally any injury claim must commence in court within 3 years of the incident and most other types of civil claims within 6 years.  Does Spain not have time limitation legislation?

Most grateful for your confirmation.

The link I posted seesm to indicate 15yrs - hopefully mariadecastro can confirm

Contracts and debts

A party loses its right to enforce payment of a debt or performance of a contract unless a court action or proceedings are commenced in the relevant Court within the following period of time starting on the date of the contract being entered into/due date for payment/performance:

In general, 15 years (art. 1.964 Civil Code – hereafter “Cc”).

There may be shorter time limits of only 5 years, for example for the payment of rent, annual payments, or payments that are due after shorter periods of time (art. 1966 Cc).

Furthermore there are time limits of only 3 years, for example for the payment of lawyer services (see art. 1967 Cc).

Tadd, I went to view your link but the McFee system on my PC went into a "Whoa, don't do there!" clearly thinks the site is more than a bit iffy.  Are you able to copy the text and paste please?

If this be true " Furthermore there are time limits of only 3 years, for example for the payment of lawyer services (see art. 1967 Cc). "

then it begs the question, three years from when? From the point at which you first paid the lawyer? Or from the point at which previous court action was completed? From a wider perspective, why should lawyers be treated any differently (3 years as opposed to 15 years) in terms of accountability?

Can this action against lawyers only be used as a last resort mechanism, i.e. following previous court action that commenced within the 15 year deadline?

ads it is quite a big pdf document 26 pages covering a few countries - I had no problems

Belwo is the info on Spain

Spain - General Legislation:

Employment Law

An employee must lodge an application with the relevant Tribunal or Court within the

following period of time otherwise he/she loses his/her right to claim:

Fair / Unfair dismissal / redundancy: expiration action of 20 days (art. 59.3 Statue of

Workers Rights)

Sexual harassment: 5 years (art. 131 Penal Code)

Contracts and debts

A party loses its right to enforce payment of a debt or performance of a contract unless a

court action or proceedings are commenced in the relevant Court within the following

period of time starting on the date of the contract being entered into/due date for

payment/performance:

In general, 15 years (art. 1.964 Civil Code – hereafter “Cc”). There may be shorter

time limits of only 5 years, for example for the payment of rent, annual payments,

or payments that are due after shorter periods of time (art. 1966 Cc). Furthermore

there are time limits of only 3 years, for example for the payment of lawyer services

(see art. 1967 Cc).

Personal Injuries/Death claims

A party loses his/her right to claim for personal injuries or for compensation in respect of

death unless a Court action or proceedings is commenced in the relevant country within

the following period of time:

15 years for contractual obligations (art. 1964 Cc) / 1 year for non-contractual

obligations (art. 1.968 Cc)

Claims that do not involve personal injuries

A party loses his/her right to claim unless a Court action or proceedings is commenced in

the relevant country within the following period of time:

In general, 15 years (art. 1964 Cc)

Shipping Claims

8821273-1

22

A party loses its right to claim damages or compensation for any shipping accident or

contract unless the relevant Court action or proceedings are commenced within the

following periods of time:

In general, 6 Months (art. 951 Ccom)

1 Year for commercial overland transport contracts

2 Years for commercial overland transport contracts in case of fraudulent acts or

intentional breach of contract. (art. 79.1 of Law 15/2009 Land Transport Law)

Registration of Charges against companies

A Register of Charges showing mortgages and other documents that create Charges

against limited companies is maintained in all/the following countries.

There is a time limit for registration of any Charge in the Register of Charges as follows:

In Spanish law, the registration of a mortgage has constitutive character. This

means that a mortgage is void if it is not registered with the Register of Charges.

For other material rights the registration has merely declaratory character but is

still desirable due to offering enhanced protection against claims of a third party.

Claims against the estate of a deceased person

Claims by creditors for debts due by a deceased person must be made and the relevant

court action or proceedings within the following period after date of death:

In general, 30 Years (art. 1963 Cc), although some Courts consider the prescription

time of 15 Years (art. 1.964 Cc) for legal acts (transactions) applicable

Claims by a spouse or children in respect of legal entitlement in the estate must be made

and the relevant court action or proceedings within the following period after date of

death:

30 Years (art. 1963 Cc) after the death of the deceased person.

SPAIN – CATALAN LEGISLATION:

In general, 10 years (art. 121-20 Catalan Cc)

3 Years for: periodical payments which are due annually or in shorter timeframes,

payments of work and services, payment of price for sales to consumers and noncontractual

obligations. (art. 121-20 Catalan Cc)

1 Year for claims related to the right of possession. (art. 121-22 Catalan Cc)

Contractual obligations: 15 years

Thanks for that Tadd.

You have to wonder about the pracrticality of some of he limits listed.  For me the most extreme seems to be: 

Claims by a spouse or children in respect of legal entitlement in the estate must be made

and the relevant court action or proceedings within the following period after date of

death:   30 Years (art. 1963 Cc) after the death of the deceased person

Must be a fair old resposibility being an executor in Spain!

Thal get nought lad. Never mind the Spanish inquisition posted by turn a glass eye to sleep.

Whatever happened to the dislike button?