28 Oct, 2015 @ 16:04
1 min read

Calling lazy lawyers and legal eagles into question in Spain

Antonio Flores
Antonio Flores

REDRESS against negligent lawyers and their insurers – also applicable to notaries, registrars and procurators – is not new and there is substantial precedent that gives us an idea of how courts view the different cases.

Antonio Flores
Antonio Flores

Let’s see some real-life examples:

  • • Missing procedural deadlines or time limitations to bring an action (called ‘diary oversights’). A clear example is one where a lawyer fails to advise the family of a person who drowned of their right to bring an action in tort against the owners of the swimming pool (within 12 months).
  • • Not filing an appeal, full stop. The lawyer was not late in filing, he simply did not file.
  • • Not advising a client of the certain failure of an action due to expiration of his right to bring a claim: particularly relevant in relation to the award of court costs, which can be substantial and, obviously avoidable, had the lawyer advised properly on the opportunity not to bring an action.
  • • Not claiming ‘lost profit’ on a judicial action when it clearly lent itself for bringing such petition: a good example to cite is that of the sole-trader owner of a tractor that was destroyed in an accident caused by the other party. Although the lawyer filed a claim for damages to the tractor he missed the opportunity to claim for non-realized profits as a result of the sole-traders inability to work.
  • • Inadequate technical approach to a legal matter and continuous string of errors, also technical, that provoked a multiplicity of procedures, making it impossible for the client to obtain legal redress.
  • • Rather laconic exposé of the alleged responsibilities of the defendant and incorrect display of evidentiary material, showing little understanding of the case itself. The lawyer, it seems, had other things in mind, or nothing at all, when dealing with this case.

Compensation in such cases is calculated by reference to the “loss of opportunity”, which is not easily measured but for “reference to conjecture”, best known as Absolute Probability Judgment, where the Court is faced with the assessment and quantification of the error, and its impact on a result had the error not occurred: in other words, what would have the chances of a claimant been had he been properly represented?

Common Law here is probably far ahead as it resolves these issues under what is deemed a judgment of feasibility of the case, which requires a study into the merits of claimants arguments’.

In this jurisdiction, it is known as the Case-Within-a-Case Rule, according to which, a legal-malpractice claimant must show that, but for the lawyer’s negligence, the claimant would have won the case underlying the malpractice action.

Antonio Flores (Columnist)

Lawyer Antonio Flores is the legal columnist for the Olive Press. Antonio has been practising law since 1997, year in which he began working for a large law firm in Marbella as a Property Lawyer. In 1998 he left the company he had joined a few months earlier, and used his knowledge and the experience gained to build his own practice. He is known throughout the community as independent, reputable and trustworthy. Through a combination of strong work ethics, determination and international exposure, his competence of Spanish Law is unparalleled and demonstrated through his fluency in English and Spanish.


  1. Does anybody know how long it takes for a non resident to claim back their 3% retention tax on sale of property? Has anybody had experience of this and had a payment? So far I’ve been waiting for 16 months since I sold. I was initially told by lawyer 7 months after one month of sale, which is eight months. There was also a 1000 euros retention by the buyers lawyer to cancel the mortgage, and my lawyer won’t give me the exact cost of this transaction as well as going very quiet on the 3% retention tax. I hope I’m not being stitched up. Maybe the 3% is taking much longer now due to the amount of ex pats selling up.

    • iTS Better not to awake a sleeping dog….while asking for a refund, changes are they willl re-calculate your non resident tax…upwards…i had to paid them to ….but was so happy finally to leave spain i did not even care about the 3 %…

      • Thanks for advice Luc. I’ll do nothing until next June, then get a flight over to Spain and confront my lawyer. It should not take more than two years. Like you Luc, I’m glad to get out of Spain.

  2. Hi Robert,it took 14 months to have our retention paid,but in the meantime,they came up with fines for so called late payments made for council taxes going back several years.It has now been repaid,ironically with interest,as they have a statutory period of one year in which to repay.I suggest you use the services of a gestor,as with his pressure to the tax office,it was paid soon after his intervention.

    • Hello Alan, I appreciate your reply. My problem is that I’m back in the UK now, so I can’t take a Gestor on to check the tax office. I sold my flat in Riviera Del Sol, do you know the address of the tax office that deals with this issue? Is it in Fuengirola?
      Many thanks again.

  3. Before I met her my partner stupidly bought a leasehold flat in Hove. The solicitor never bothered to check with council if the flat was legally converted, it was’nt. This lawyer was sued by another crap lawyer she used (against my advice), guess who was the only one to gain.

    Don’t make an issue about Spanish lawyers, make an issue about all lawyers – grossly overpaid and 95% corrupt – Will Shakespeare was right and that was centuries ago.

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