PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes, Petra Carreira and Maria Berta Jerónimo, PLMJ
As a general rule, the court will rule on all substan- tive issues, including class membership, in the final judgment. 3.5 Joinder Outside the scope of class actions, third parties may join the proceedings as claimants or defendants of their own motion or at the request of parties. This will be the case when a third party has an interest similar to that of the claimant or the defendant in the outcome of the proceedings. If the third party does not have the same interest in the case as the claimant or the defendant (eg, it has only an indirect interest), it may still participate in the pro- ceedings. In this case, participation in the proceed- ings will be more limited, as will be the effect of the judgment on the third party. 3.6 Case Management Powers of Courts In civil cases, the courts are under a duty of proce- dural management. This means that it is the judge’s duty to actively manage the proceedings and ensure that they proceed expeditiously. The court must take all necessary steps to ensure the normal continuation of proceedings. If necessary, the court must reject any irrelevant or delaying tactics. Case management powers include adopting mechanisms to simplify and expedite proceedings, ensuring a fair settlement of the dispute within a reasonable timeframe after hearing the parties. In addition, subject to mandatory rules and time peri- ods, the court may adopt a procedural approach that is appropriate to the specifics of the case and adjust the content and form of procedural acts to achieve the intended outcome, thereby ensuring due process. 3.7 Length and Timetable for Proceedings The experience of the authors to date of civil litiga- tion in Portugal is that such proceedings can take between approximately four and five-and-a-half years, with the following estimated periods for each stage of proceedings: • first instance proceedings – two-and-a-half years to three years;
• Court of Appeal proceedings – an additional one to one-and-a-half years; and • Supreme Court of Justice proceedings – up to an additional year. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings There are no formal procedural mechanisms in place to deviate from the length and timetable of proceed- ings, such as:
• acceleration of claims; • summary disposal; or • delaying of claims.
However, in civil cases, the court has discretionary case management powers to extend certain time limits (usually at the request of the parties), provided that certain requirements are met – please refer to 3.6 Case Management Powers of Courts . In addition, a party can request that an application/ motion be dealt with on an urgent basis, even in cases that are not inherently urgent. The timeframe for the court’s decision will depend on factors such as the court’s workload and the need to grant the opposing party an opportunity to comment on the application/ motion filed. There is also no specific procedure for the parties to apply for early judgment on some or all the issues in dispute, or for the other party’s case to be struck out before trial or substantive hearing of the claim. The parties typically do so in their pleadings or sub- missions made during the proceedings, as a result of the arguments presented. The court may nonetheless anticipate a ruling on one or more procedural matters, or even decide the merits of the case (either partially or fully) if it considers it unnecessary to produce any or additional evidence on the matter being decided. 3.9 Funding and Costs Costs The general rule is the “loser pays” rule. Costs com- prise court fees and adverse costs, including the pre- vailing side’s counsel’s fees. In the event of a settle- ment, costs are split 50:50, unless otherwise agreed upon.
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