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Exceptions regarding the inclusion of new evidentiary documentation in Spanish Civil Proceedings

As referenced in the previous post, these are the main exceptions regarding the inclusion of new documents in Spanish Civil Proceedings.

Exception 1: Subsequent Submission of Expert Reports When It's Not Feasible to Include Them with the Lawsuit or the Reply to the Lawsuit

It should be noted that when it's not possible to include an expert report with the lawsuit or the response to the lawsuit, either because there isn't enough time for preparation and submission or because a request will be made for the court to appoint an expert, it's possible to delay its submission to a later time. However, for the subsequent submission to be valid, two requirements must be met:

  • Announcement of the submission of the expert report with your lawsuit or response to it (Article 337.1 of the Civil Procedure Law), or alternatively, requesting in these filings that the court appoint a judicial expert (Article 339).

  • Submitting the expert report, once you have it, at least 5 days before the pre-trial hearing or oral trial.

Exception 2: Documents and Reports Whose Necessity Arises Following the Response to the Lawsuit

This option, provided by the Civil Procedure Law, allows the plaintiff to submit new documents during the pre-trial hearing to counter the opposition and allegations made by the defendant.

Article 265.3 of the Civil Procedure Law states: "Notwithstanding the provisions of the preceding paragraphs, the plaintiff may present at the pre-trial hearing or oral trial the documents, means, instruments, reports, and opinions related to the subject matter whose interest or relevance only arises as a result of allegations made by the defendant in response to the lawsuit."

For instance, if the defendant, in their response, denies the ownership claimed by the plaintiff regarding a certain property, which is the subject of the claim, the plaintiff could submit the deeds and other documents they believe prove said ownership at the pre-trial hearing.

In any case, the newly submitted documentation should not be constitutive of the plaintiff's claims (precisely as stated in Article 265.1.1 mentioned above), but rather its submission should be necessary in light of surprising or new allegations made by the defendant regarding other issues.

Thus, following the example above, the plaintiff should submit with the lawsuit some document proving their ownership of the property in dispute (e.g., a land registry certificate, a sales deed, an inheritance allocation deed, etc.), as if their legitimacy is based on their status as the owner, this fact must be demonstrated at least minimally. It's different if, despite having submitted such documentation, the defendant continues to challenge the ownership, in which case the submission of new documentation, if any, seems to be admissible.

Although this should be the case, in practice, when the defendant denies any fact, regardless of its nature, judges should admit the submission of new documents by the plaintiff without rigorously analyzing whether this documentation supports the plaintiff's constitutive claims and, therefore, should have been submitted initially.

If instead of new documents, it's expert reports that the plaintiff wishes to submit following the allegations of the defendant, I understand that their submission would be possible under Article 338 of the Civil Procedure Law, although in any case, they should be submitted at least five days before the pre-trial hearing.

Exception 3: Submission of Documents Dated After the Lawsuit or Response and Documents of Which Knowledge Is Gained Later

Article 270 of the Civil Procedure Law provides for situations in which the court must admit the submission of new documents and instruments related to the subject matter after the lawsuit and response have been filed.

These instances of subsequent submission of documentation apply to both the defendant and the plaintiff and include:

  1. Documents dated after the lawsuit, response, or, where applicable, pre-trial hearing, provided they couldn't have been obtained or prepared earlier. For example, a medical report dated later due to a subsequent medical examination, a bill for repairs undertaken later, etc.

  2. Documents dated before the lawsuit, response, or, where applicable, pre-trial hearing, when the party submitting them justifies not having been aware of their existence beforehand. The key here is to prove the lack of knowledge of the document's existence, which could be demonstrated through any legally valid means.

  3. Documents that couldn't have been obtained earlier by the party wishing to submit them, due to reasons beyond their control, provided the corresponding filing or announcement has been made as stipulated in Article 265. For example, the submission of a certificate that must be issued by a public body and that couldn't be submitted within the deadline.

Exception 4: Submission of New Documents Due to Supplementary, Corrective, Accessory, and Supplementary Allegations of Facts or Newly Emergent Facts

As we've previously discussed, Article 426 allows parties, once they have submitted the lawsuit and response, to make supplementary, corrective, and clarifying allegations, introduce supplementary and accessory claims, and introduce new or emergent facts.

Article 426.5 of the Civil Procedure Law allows the party making these allegations to submit the necessary documents and expert reports justifying them. Similarly, the party affected by the allegations made by the opposing party could also submit new documents and expert reports necessary to counter them. In fact, Article 427.3 of the Civil Procedure Law provides for this possibility.

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