Why can construction defect proceedings take so long?
Obviously, it depends on many circumstances, above all on the court the case is assigned to and on the volume of cases that court has to resolve beforehand, since, depending on the court and the judicial district, sometimes hundreds or thousands of lawsuits and proceedings are processed every year. Let us look at the stages of the proceedings and how long each one can drag on.
First, the lawsuit must be admitted and the proceedings opened. There will be a short waiting list for this, and it may take a few weeks for the lawsuit to be assigned a case number, for a Decree admitting it to be issued, and for the defendants to be summoned.
Next, the defendants must be formally served, personally handing them the summons together with a copy of the lawsuit. Depending on how easy or difficult it is to find the defendants at their address, this can be a short or a very long step, since if the defendant’s whereabouts cannot be found, alternative addresses must be traced and, as a last resort, service is made by public notice. In the case of well-known developers or building contractors, finding their registered office is usually straightforward, but this is not so with other less solvent entities or self-employed individuals.
Once all the defendants have been summoned, the 20 days they have to file their defence must pass, and those documents must be added to the case file or, if they do not respond, they must be declared in default.
In construction defect proceedings, when filing its defence a defendant may also “bring into the proceedings”, through the legally established mechanism known as “third-party intervention”, another party involved in the construction whom it considers liable for the damage. This step can also delay the process considerably.
In addition, in this type of case, a request for the appointment of a court-appointed expert or a failure to summon a party-appointed expert can also delay the process.
Once all the defences are on file, the court must set a date for the Preliminary Hearing, which is the first hearing in Ordinary Proceedings. At it, an attempt is made to reach an agreement, procedural issues are discussed, evidence is proposed and admitted, and a date is set for the Trial.
Courts’ diaries are usually quite full, and it takes months to set dates, both for the Preliminary Hearing and at that hearing itself, where the day of the Trial must be fixed. The Trial, at which the evidence is examined and closing arguments are made, is normally scheduled for several months ahead.
Once the Trial has been held (provided it has not been adjourned for some reason), the case is reserved for judgment, and how quickly this step goes once again depends on the volume of cases the judge must resolve. Judges normally deliver judgment within two or three months on average from the date of the trial.
In short, construction defect proceedings usually take a year on average at First Instance until judgment is obtained. If that judgment is appealed and the appeal has to be heard by the Provincial Court (Audiencia Provincial), although there are fewer stages, the backlog in the appeal courts means it would take another year.
Although waiting times in our justice system are far from desirable, and we hope they will improve, the truth is that this type of proceedings must be approached with patience and a certain philosophy. As a distinguished colleague used to say, it is like planting a young tree, which takes time to grow but which, with dedication, time and a little luck, will bear fruit in the end.
DPcon Reclamación Daños Constructivos.
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