Communication from José Escobedo and Santiago Saenz, Tenerife Litigation

[Janet]

I have been asked to publish the following on behalf of its authors and my fellow founding Alotca members, José Escobedo and Santiago Saenz, of Tenerife Litigation.

Further to your recent posts with regard to the latest developments in our class action against these fines for illegal holiday letting, we realize that this information, although it was clearly explained in your blog, might have caused some confusion for your readers. This is mainly due to the complexity of the Spanish and Canarian administrative laws which sometimes are difficult to understand even for experienced lawyers.

We also notice that recently an article has been published in a local newspaper by a British solicitor in which he comments and gives his legal opinion about how our law firm should conduct Court proceedings and litigation strategy in the Courts of Law in Santa Cruz de Tenerife.

This behaviour might be appropriate if the said solicitor had the same qualification, professional experience and knowledge of the Spanish language as any registered Spanish lawyer, but we understand that the said solicitor is only registered in the Colegio de Abogados as a foreign lawyer as stated in his own web page.

Furthermore this British solicitor, despite not being part of these Court proceedings nor representing any of our clients, is advising our clients not to finalize the dispute with the Government with an agreement and is encouraging our clients to take this matter to the European Court.

It might be normal practice in the UK that Spanish lawyers, without being asked, advise British lawyers or their clients about the way they should conduct their practice in British Courts, but this is not ethical behaviour in Spain and is clearly not accepted as ethical professional behaviour in our Canarian Law Society (Colegio de Abogados).

Having said that, we want to make very clear that we have no wish to start a debate with this foreign solicitor nor with any other lawyer about the Court cases we are dealing with at present.

Although we have been asked, we have no wish nor intention whatsoever to publish, nor to disclose, any information about our litigation strategy in a local paper as we do not think this is a professional way to defend our clients' interests. Anything we have to say about Canarian and Spanish law we will state in the Courts of law.

Having said that, we would like to make very clear some points which we think your readers who might be affected by these fines should keep in mind:

1. Although the fines in the majority of the cases are the same, i.e. 13.800€, clients' circumstances could be different and defence arguments may also be different depending on the defence the clients have submitted (if any) when they received the first letters from the Tourist board. Litigation strategy must therefore be adapted to each client's individual circumstances.

2.- Clients have been fined for advertising apartments on the internet without an inspection book (9.000€ initial fine) and for not having a customer complaint book (9.000€ initial fine): now these fines have been reduced to 6.900€ each.

3.- There are other clients who have been fined for renting properties in a touristic complex where there is already a licensed management company in place (fines could be in the region of 25.000€).

4.- Management companies, estate agents and cleaning companies have been fined for advertising or renting properties without a licence (fines could be in the region of 66.000€).

5. Spanish administrative law states very clearly that the fines must be paid and subsequently these fines can be disputed in Court.

6. To be able to challenge these fines in Court the client must present all possible appeals against the letters received from the Government and reach the last appeal to the President of the Canary Islands Government (RECURSO DE ALZADA): if this last appeal is rejected, then the client can present a claim in Court.

7. When a client submits the claim to the Court, it is possible to request from the Court an order to suspend the execution of the fine to avoid damages (embargo on property, accounts etc.).

8. After hearing the petitioner's arguments, it is possible that the judge will authorize the petitioner to deposit the amount of the fine in the Court subject to the outcome of the Court case and the final verdict .

9. Prior to the trial, the Judge may invite the parties in a dispute to reach an agreement to put an end to a dispute, the judge can even give some guidelines and advice for negotiation, but this is only with the aim of reaching a solution to the problem. The final Court decision is not determined by this request or invitation from the judge.

Please find below the wording of article 77 of Spanish litigation legislation in administrative contentious matters (Ley 29/1998 dated 13th July) de Jurisdicción Contencioso Administrativa) :

ARTÍCULO 77
1. En los procedimientos en primera o única instancia, el Juez o Tribunal, de oficio o a solicitud de parte, una vez formuladas la demanda y la contestación, podrá someter a la consideración de las partes el reconocimiento de hechos o documentos, así como la
posibilidad de alcanzar un acuerdo que ponga fin a la controversia, cuando el juicio se promueva sobre materias susceptibles de transacción y, en particular, cuando verse sobre estimación de cantidad.
Los representantes de las Administraciones públicas demandadas necesitarán la autorización oportuna para llevar a efecto la transacción, con arreglo a las normas que regulan la disposición de la acción por parte de los mismos.
2. El intento de conciliación nosuspenderá el curso de las actuaciones salvo que todas las partes personadas lo solicitasen y podrá producirse en cualquier momento anterior al día en que el pleito haya sido declarado concluso para sentencia.
3. Si las partes llegaran a un acuerdo que implique la desaparición de la controversia, el Juez o Tribunal dictará auto declarando terminado el procedimiento, siempre que lo acordado no fuera manifiestamente contrario al ordenamiento jurídico ni lesivo del
interés público o de terceros.

10. Considering the above, we strongly advise anyone affected by this problem to seek professional advice from Spanish registered lawyers who have experience in "Derecho administrativo contencioso" as, sooner or later, if they submit a claim, they will be facing in Court well trained and experienced Canarian Government lawyers who will no doubt do their utmost to defend Canarian laws whether they are good or bad in the eyes of European Law.

JA

[Myrtle Hogan-Lance]

Magnificent piece.  So well stated.  I can just imagine them spitting out 'British lawyer' - ptooey! 

Items 7 and 8 are interesting.  I read 7 to say that the Court can say that the people can keep their money until a final decision is made (presumably so as not to bankrupt them?).   Then I read 8 to say they can deposit the fine, but fail to see what advantage that has on the accused. 

[Janet]

7 and 8 are of a piece really. Normally fines have to be paid at the start of an appeal to the Court, and if the verdict is favourable one gets the money back. It's possible, though, at the point of submitting an appeal to ask the Court to waive this requirement; if the Court agrees, the fine doesn't have to be paid until the end of the hearing, and because it's been agreed by the Court, the plaintiff cannot add on damages, or embargo accounts, etc. If someone doesn't pay the fine but doesn't have approval from the Court to do so, then damages and embargoes and the like are likely.

As an alternative to paying the fine to avoid damages, or not paying the fine and risking them, the Court is able, according to its view, to offer the option of lodging the money with the Court itself instead of waiving the requirement to pay anything at all. The money goes into an escrow account rather than to the plaintiff. This means that if the appeal is lost the money is there, guaranteed, for the plaintiff, but if the appeal is successful, the appellant gets it back immediately ... i.e. the same day! This is as opposed to winning an appeal and having to get the money back from the plaintiff who already has it in his possession. The lawyers think that it would take the Government around a year to repay any fine paid by someone who was ultimately successful at Court.

So, the options for an appellant are:
1. pay the fine
2. don't pay the fine
3. ask the Court to waive the requirement to pay the fine - the Court might agree, or might instead require the money to be held in an escrow account, so the fine is sort of paid, but the monies don't go to the plaintiff.

[Myrtle Hogan-Lance]

Thanks.  I wondered if 8 somehow involved an escrow situation.  Really, it's the best thing possible for the person at risk of being fined.  I can only imagine what it must be like to be cleared then try to get your money back from the plaintiff.  Like