For those new to the law, we want to explain what legal costs are, which are mentioned so often and must be taken into account when bringing proceedings (not to be confused with Court Fees).
Legal costs are the expenses incurred in court proceedings. That is, the lawyers’ fees of both parties, the fees of the court representatives (the procuradores), and to a lesser extent the fees of experts and other expenses such as the publication of notices, etc..
By court order, these costs may be imposed on one of the parties, so that those whose claims are dismissed have to bear the fees of the opposing lawyers. That order must be made expressly by the Judge in the judgment, and for this the claim must be upheld in full, or dismissed entirely, under the principle that costs follow the event.
Although it is a controversial point in case law, substantial success (that is, the Judge granting most of the claims) is sometimes enough for an order to pay legal costs.
Once there is an order to pay legal costs, in order to claim them they must be assessed (checked and capped) by the Court Clerk. Although lawyers’ fees, when charged to their own clients, do not have to be based on the professional fee scales (which are merely guidelines), when they are assessed so that they can be paid by the opposing party, Clerks do rely on the relevant fee scales to cap and approve them.
Hence the importance of being clear about the viability of proceedings in a claim for construction defects, both to minimise the risk of losing the case with an order to pay the other side’s legal costs and to have a real chance of winning the claim with a favourable order on legal costs, so that it is the opposing parties who have to pay those legal costs.
Any questions?