What are preliminary proceedings, and what is its purpose?
Preliminary proceedings refer to a short, expedited procedure to be conducted prior to filing a lawsuit. Through these proceedings, the prospective plaintiff or claimant can request the assistance of the court to obtain information, specify, or clarify essential data and issues necessary for the filing and trial intend to initiate, as these cannot be obtained by themselves or from the public domain. This allows the plaintiff to decide on the merits of filing or the extent and scope of the claim to be pursued.
The information and documentation that can be requested is varied, as evidenced by the categories established in Article 256 of the Spanish Civil Procedure Law. These may involve statements, submissions, and exhibiting documents, or things. Although these seem limited in nature, their interpretation in case law is broad, and their specific extent may vary depending on the circumstances of the case.
Before which court can these preliminary proceedings be filed?
The request for preliminary proceedings can be filed before the Court of First Instance or Commercial Court, as appropriate, depending on the nature of the judicial procedure intended to be initiated, and always from the domicile of the person who should testify, exhibit, or participate in the proceedings that will be arranged to prepare for the trial. Except in the exceptions provided.
In some of the cases provided for in the first paragraph of Article 256 of the Spanish Civil Procedure Law, specifically in the sixth to ninth subsections, which deal with preliminary proceedings aimed at initiating procedures for the defence of collective interests of consumers and users, with preliminary proceedings serving to identify those affected and members of the collective, for the exercise of an action for the infringement of an industrial or intellectual property right, requesting information about the possible infringer, origin, and distribution networks of the work or product that infringes an intellectual or industrial property right, or for the protection of certain rights provided for in special laws, such as fact-checking proceedings under the Patent Law or Unfair Competition Law.
In these cases, the jurisdiction depends on the court to which the complaint should be submitted. These are preliminary proceedings aimed at initiating procedures for the defence of collective interests of consumers and users, for the exercise of an action for the infringement of an industrial or intellectual property right, or for the protection of certain rights.
What requirements does the law demands for filing preliminary proceedings?
Due to their instrumental nature to pursue a claim, these preliminary proceedings will only be conducted when this is absolutely necessary. One of the main reasons for denying preliminary proceedings is if they are used for spurious purposes to obtain pre-constituted evidence or to try to draw conclusions about the substance of the matter to be trialled.
Preliminary proceedings always precede the filing of a lawsuit and cannot be filed simultaneously, as is the case with precautionary measures. This is because they work as the necessary tool for filing a lawsuit, as the information that is missing is requested through these preliminary proceedings. Also, their filing is not allowed once the lawsuit has been filed, since they become redundant as any necessary information can be requested within the same proceeding through disclosure of evidence.
For their admission of the preliminary proceedings, their object must be clearly identified and justified. Additionally, a caution bond must be deposited with the court as a guarantee that the applicant will assume any possible damages resulting from the request if the request is found to be unfounded or abusive.
By providing a bond, the requesting party demonstrates its commitment and seriousness in their request, thereby avoiding frivolous or abusive requests for preliminary proceedings that could cause unjustified harm to the other party or the judicial process itself.
What are the sequential steps for the preliminary proceedings?
The preliminary proceedings procedure is a straightforward process that unfolds as follows:
- Request for preliminary proceedings: the request is submitted to the court and it must include the reasons for conducting these proceedings, a detailed description of the information and documents sought, and an offer of a caution bond.
- Admission or rejection of the request: once the court reviews the request, it decides whether to admit or reject the proceedings. It is important to note that, while the decision to admit the request for preliminary proceedings is not appealable, an appeal can be filed against the decision denying or rejecting the request. It is important to distinguish between admitting the preliminary process and ordering the counterparty to fulfil what has been decided, these are two steps within the same process.
- Citation for the practice of preliminary proceedings: once the request for preliminary proceedings is admitted, the parties involved are summoned and required to carry out the requested preliminary proceeding within a period of ten days.
- Opposition to the practice of preliminary proceedings: upon receiving the summons, there is an opportunity for the requested party to oppose to the preliminary proceedings. This opposition should be filed within a five-day period, and the party can request for a hearing.
If the requested party does not comply with the request and does not oppose the preliminary proceeding within the stipulated timeframe, the court may, with proper justification, take measures such as authorizing a search and seizure or treating the facts as a judicial confession, as provided by Article 261 of the Spanish Civil Procedure Law.
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