PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes, Petra Carreira and Maria Berta Jerónimo, PLMJ
ing arrangements common in jurisdictions such as the US, the UK and Australia are permitted by Portuguese law is not yet clear. Certain aspects of third-party funding in Portugal are currently being litigated in some ongoing class action claims. Among other aspects, it is discussed whether third-party funders should be permitted to receive unclaimed damages (ie, a share of the compensation awarded for damages suffered by others). Third-party funding remains a hot topic for discussion among legal practitioners in Portugal. Please refer to 1.3 Imple- mentation of the EU Collective Redress Regime in the Consumer Protection Class Actions Act, which allows the use of third-party funding in Portugal, pro- vided the requirements listed therein are met. 3.10 Disclosure and Privilege Unlike in common law jurisdictions, Portugal does not have a discovery process. Portuguese law also pro- hibits other types of pre-trial investigations, such as fishing expeditions or indiscriminate requests for the production of evidence. A party to litigation is there- fore under no obligation to make available evidence which supports or undermines its case to the other side. Notwithstanding the above, the court may order the production of specific documents or a set of docu- ments at the request of each party – this is more com- mon in compensatory class actions, in which claim- ants often make very broad document requests that • Requests for reference to an excessively broad class of documents or information on a certain matter, or that will lead to non-specific searches, will not be granted by the court. • The requesting party must also indicate the facts it intends to prove with the documents requested – each document request must be proportionate and relevant to the proceedings. The requesting party must also identify the documents it requests to the extent possible. This is without prejudice to the possibility of requesting categories of documents or the production of ex novo documents (follow- are heavily litigated by defendants. Documents Disclosure Requests
ing recent ECJ case law within private antitrust enforcement – Case C-163/21 Paccar e.a.). • The court will grant a request for disclosure of documents if the requesting party is unable to obtain them by any other means or has substantial difficulty doing so. • Production requests are usually made between the pleadings stage and the preliminary hearing and are subject to the adversarial rules. This means that the court will not order the production of any documents without the opposing party making submissions to the court regarding the production request (eg, with respect to its proportionality or temporal scope). • The court sets the timing of document produc- tion, which may vary depending on the type and number of documents to be produced. Judges are usually receptive to reasonable constraints invoked regarding the production of documents. • The court may also order the parties (or even third parties) to disclose documents or other evidence of their own motion at any stage of the proceedings. Notwithstanding the above, the parties or persons concerned may refuse to comply with the court’s order if it entails a breach of a professional or public officer’s privilege, or of state privilege. In the event of refusal, the court may refer the matter to the appellate court for assessment of whether the duty of secrecy should be upheld or waived. Stringent safeguards to protect confidential and pri- vacy/sensitive, commercially sensitive documents or information can be requested from, or ordered by, the court. Any facts, documents or information obtained in breach of the attorney-client privilege will not be admitted as evidence in court proceedings. Corre- spondence and documents between lawyers and their clients cannot be seized by the court unless they are related to a criminal offence in proceedings where the counsel is a defendant. 3.11 Remedies The remedies available through collective redress/ class actions in Portugal are the same as those that are available for general civil cases – notably:
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