SPAIN Law and Practice Contributed by: Xavier Moliner and Juan Martínez, Faus Moliner
However, if the pleas were partially accepted or reject - ed, each party shall pay the costs generated on its behalf, and half of the common costs, except when there are reasons to impose the payment thereof upon one of the parties due to reckless litigation. 2.15 Available Funding in Product Liability Claims Third-party funding is not forbidden in Spain. There is no specific provision that regulates this method, apart from Article 1255 of the Civil Code, which sets forth that: “The contracting parties may establish any covenants, clauses and conditions deemed conveni - ent, provided that they are not contrary to the laws, to the morals or to public policy.” Therefore, if it is not contrary to the law, morals or public order, any agree - ment in this regard is valid. At the EU level, the Representative Actions Directive contains some provisions regarding third-party fund - ing in relation to representative actions; however, this Directive has not yet been transposed in Spain. Attorneys’ professional fees shall be freely agreed upon between the client and the attorney in obser - vance of the rules on ethics and free competition. Fur - thermore, lawyers are allowed to charge a success fee if they agree on such with their client. The form of payment of fees shall also be freely agreed upon, and may include payment of a percentage of the outcome of the claim. However, in any case, the client shall pay the minimum expenses that the lawyer may incur as a result of its representation. Parties that can provide evidence that they lack suf - ficient economic resources to litigate may be benefi - ciaries of legal aid if they comply with the requirements established in Law 1/10 January 1996, on legal aid. 2.16 Existence of Class Actions, Representative Proceedings or Co-Ordinated Proceedings in Product Liability Claims Article 11 of the Code of Civil Procedure 1/2000 fore - sees the possibility of bringing collective legal pro - ceedings, and sets out that legally constituted associ - ations of consumers and users shall have standing in court to defend the rights and interests of their mem - bers and of the association, as well as the general
interests of consumers and users, without prejudice to the individual legal standing of the persons who have suffered the damages. When those damaged by a harmful event (eg, by a defective product) are a group of consumers or users that are perfectly determined or may be easily deter - mined, the standing to apply for the protection of these collective interests corresponds to: • associations of consumers and users; • legally constituted entities whose purpose is the defence or protection of such consumers and users; or • the affected groups themselves. In contrast, when those damaged by a harmful event are an undetermined number of consumers or users, or if the number is difficult to determine, the standing to bring court proceedings in defence of these col - lective interests shall correspond exclusively to the associations of consumers and users that form part of the Council of Consumers and Users. If the territo - rial scope of the conflict mainly affects one specific autonomous region, the specific legislation of that autonomous region shall apply. The Attorney General’s Office also has legal stand - ing to bring any action in defence of the interests of consumers and users. Notwithstanding these procedural mechanisms, col - lective actions and representative proceedings in product liability matters remain relatively uncommon in Spain. In practice, most product liability claims are still brought by individual claimants. This position may change once the Representative Actions Directive is fully transposed into Spanish law. 2.17 Summary of Significant Recent Product Liability Claims Regarding product liability of medicinal products and medical devices, the following judgments of the Span - ish Supreme Court deserve special mention.
248 CHAMBERS.COM
Powered by FlippingBook