PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes and Petra Carreira, PLMJ
3.6 Failure to Respond If the defendant does not respond to a lawsuit, the court will first check whether the service was proper. If it was not, the court will order the service to be repeated. If process has been served properly and the defendant still fails to respond, the facts alleged in the initial complaint are deemed to be admitted by the defendant. However, there are situations in which the defendant’s failure to respond is not taken as an admission of the facts alleged in the initial com- plaint (eg, where there is a multi-defendant case and one of the defendants has contested the facts alleged in the initial complaint or when the service has been carried out by public notice). If a properly summoned defendant fails to respond to a lawsuit, the case is referred to counsel for the plaintiff (and the counsel for the defendant, if appointed) for closing state- ments within ten days. The court will then issue a default judgment. 3.7 Representative or Collective Actions Parties are generally allowed to file collective actions (eg, when multiple plaintiffs join their claims if they hold the same or similar interests). When two or more similar proceedings are pend- ing before the court and the legal requirements for this are met, the cases may be joined at the request of the parties or by a decision of the court of its own motion. There is a specific form of class action whereby an individual or a group of individuals, associa- tions, foundations, local authorities or, in respect of certain matters, the public prosecutor and the Directorate-General for Consumers may bring an action in representation of a larger group of people. This class action procedure is known as the ação popular (popular action) and may be
brought in areas such as the environment, public health, consumer rights, cultural heritage, state- owned property and the private enforcement of competition law. The popular action provides for an opt-out procedure. There is no specific definition of a class and there is no determination of a class by preliminary certification. Moreover, in these proceedings, the court can issue an initial dis- missal judgment if it considers that the claim is blatantly unfounded and that it cannot proceed as a class action or will not succeed. This is an exception to the general rule in civil proceedings where the merits of the case are normally heard only at the end of the case, after evidence has been taken. Despite the Class Action Act being in force since 1995, class actions, as outlined above, are a recent growing trend in Portugal, particularly in the areas of competition, privacy, and con- sumer law, as a result of the activity of recently emerged self-identified consumer associations. The Portuguese legal system is very plaintiff- friendly when it comes to the payment of court costs in popular actions. 3.8 Requirements for Cost Estimate There are no requirements to provide clients with a cost estimate of the potential litigation at the outset. The only point to note is that Portuguese law expressly forbids arrangements whereby coun- sel’s fees are exclusively dependent on the out- come of the case (contingency fees). They may, however, be composed of a fixed part regard- less of the outcome of the case (eg, according to the time spent, the urgency or complexity of
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