Court Costs in Spain: Who Pays if You Win or Lose?

🇪🇸 Read the original in Spanish

Starting a judicial proceeding in Spain usually generates one of the most recurring and feared doubts for citizens and foreign residents: how much will the process cost me and who will bear the expenses if things do not go as I hope? The fear of being ordered to pay court costs acts, on many occasions, as a barrier that stops people from defending their legitimate rights. Understanding how the award of costs works, the rules governing their imposition, and the quantitative limits established by law is essential for making smart legal decisions and avoiding unpleasant financial surprises in Spanish courts.

What exactly are court costs?

In the field of Spanish civil law, there is a substantial difference between the "expenses" (gastos) of a lawsuit and the court "costs" (costas judiciales). While expenses are all those financial outlays generated by the development of a litigation, court costs are a specific part of those expenses that the law strictly defines.

According to *Article 241 of the Ley de Enjuiciamiento Civil (LEC / Civil Procedure Act)*, the following concepts are considered court costs:

• Fees for defense and technical representation: This refers to the fees of the abogado (lawyer) and the rights of the procurador (court procurator, whose intervention is mandatory in most civil proceedings exceeding 2,000 euros).
• Insertion of announcements or edicts: Those that must obligatorily be published in official gazettes (such as the BOE (Official State Gazette), regional gazettes) or the press during the course of the process.
• Deposits required to file appeals: Amounts required by law to be able to appeal certain resolutions (for example, 50 euros for an appeal before the Provincial Court).
• Expert fees: The fees of judicial or party-appointed peritos (expert witnesses) who have had to issue a report and appear in court.
• Copies, certifications, notes, testimonies, and analogous documents: Which must be requested from public registries or official offices.
• Court fees: In the case of legal entities (companies), since natural persons (individuals) are exempt from paying court fees in Spain thanks to the reform of the year 2015.

The substantive rules: Who pays the costs according to the Civil Procedure Act?

The main criterion governing the Spanish civil process to determine who must pay the costs is the so-called objective defeat principle (principio de vencimiento objetivo). However, there are very important nuances and exceptions that are worth knowing in detail.

*Article 394 of the Ley de Enjuiciamiento Civil (LEC)* is the reference rule that regulates the award of costs in the first instance of declaratory proceedings.

1. Total estimation: The objective defeat principle

If the court fully upholds all the claims of one of the parties (that is, if you win the trial completely or lose it completely), the judge will impose the costs on the party whose claims were entirely rejected.

• If you win completely: The defeated defendant will have to pay your expenses for the lawyer, procurator, and expert witnesses (with certain limits that we will see below).
• If you lose completely: You will be the one who must pay the costs incurred by the opposing party to defend themselves.

2. The exception of "doubts of fact or law"

Article 394.1 of the LEC itself establishes a very relevant exception: the judge can exempt the losing party from paying costs if the case presented serious doubts of fact or law. To assess this, the court takes into account whether there are contradictory judgments from the Audiencias Provinciales (Provincial Courts) or the Tribunal Supremo (Supreme Court) on a similar issue. If the judge decides not to impose costs for this reason, they must expressly justify it in the judgment.

3. Partial estimation: Each party pays their own

If the judge upholds only a part of your claims (for example, you claimed 10,000 euros and the judge rules that you are only entitled to 5,000 euros), it is understood that there is a partial estimation (estimación parcial). In this scenario, the general rule is that each party will pay the costs incurred at their instance (their own lawyers and procurators) and common expenses will be paid half each. The only exception is if the judge finds that one of the parties has litigated with evident temerity (bad faith), in which case they could impose the costs on them despite the partial estimation.

4. The one-third (30%) limit for the loser

To prevent an award of costs from financially ruining the defeated litigant, Article 394.3 of the LEC establishes a protective quantitative limit.

The party ordered to pay the costs will only be obliged to pay, for the fees of the lawyers and other professionals who are not subject to a tariff (such as expert witnesses), a total amount that does not exceed one-third (30%) of the monetary value of the lawsuit.

• Note: This 30% limit does not apply if the judge expressly declares in the judgment that the condemned party acted with temerity. Procurators are also not affected by this limit, as they charge according to a fixed tariff regulated by law.

Practical examples with real figures

To understand how these rules and limits are applied in practice, we will analyze two common scenarios in Spanish civil law.

Example 1: Lawsuit for dampness and damage to a property (Total estimation)

María owns an apartment and suffers water leaks coming from the flat above. After trying to reach an amicable agreement without success, she files a civil lawsuit claiming repair and compensation of 9,000 euros for the damages caused.

• The trial: The judge issues a judgment fully upholding María's lawsuit. The neighbor is ordered to repair the damage, pay her the 9,000 euros, and is expressly ordered to pay the court costs.
• María's expenses:
• Lawyer: 1,800 euros.
• Procurator: 250 euros.
• Technical architect expert: 600 euros.
• Total of María's expenses: 2,650 euros.
• The settlement: Since there is an award of costs and a total estimation, the neighbor must reimburse María for her expenses. We apply the one-third limit of the lawsuit's value: one-third of 9,000 euros is 3,000 euros. Since the fees of the lawyer (1,800 euros) and expert (600 euros) total 2,400 euros (an amount below the 3,000 euros limit), the neighbor must pay María the entirety of the 2,650 euros invested. The trial will have cost María nothing.

Example 2: Claim for an amount with partial estimation

Carlos claims 15,000 euros from a construction company for a delay in the delivery of a renovation and for defective finishes.

• The trial: The judge analyzes the evidence and determines that the delay is justified, but the defective finishes must indeed be compensated. The judge issues a judgment partially upholding the lawsuit and orders the construction company to pay Carlos only 6,000 euros. The judgment makes no special mention of temerity by either party.
• The costs: Being a partial estimation, the general rule applies: each party pays their own expenses.
• The financial outcome: Carlos receives 6,000 euros from the construction company, but must pay his lawyer (2,000 euros) and his procurator (350 euros) out of his own pocket. Carlos's actual net benefit after the judicial process is reduced to 3,650 euros.

The practical procedure: How are costs collected step by step?

Once a final judgment ordering the opposing party to pay costs is obtained, collection does not happen automatically. A specific procedure called Taxation of Costs (Tasación de Costas) must be initiated.

Below are the steps of this procedural transaction:

1. Finality of the judgment: The first indispensable requirement is that the judgment must be final (firme), meaning that no further appeal can be filed against it or that the legal period to file an appeal has elapsed without either party doing so (normally 20 business days).
2. Filing the request: The procurator of the winning party files a written request before the Court that heard the matter in the first instance, requesting the taxation of costs. This request must obligatorily be accompanied by the original invoices of the lawyer's fees, the procurator's rights, the expert witnesses' invoices, and all other receipts of reimbursable expenses.
3. *Practice of the taxation by the Letrado de la Administración de Justicia (LAJ):* The LAJ (formerly called the court secretary) examines the documentation provided, checks that the claimed concepts comply with what is permitted by law, and performs the detailed calculation of the proposed costs.
4. Transfer to the parties for 10 days: Once the proposed taxation is made by the LAJ, it is notified to both parties. A common period of 10 business days is opened so that the condemned party can:

• Accept the taxation and proceed to voluntary payment.
• Challenge the costs for being excessive (impugnación por excesivas, for example, if the lawyer's fees exceed the guidelines of the Bar Association or the one-third limit).
• Challenge the costs for being undue (impugnación por indebidas, for example, if concepts have been included that do not correspond to the process or expenses of professionals whose intervention was not mandatory).

1. Resolution of the challenge and final approval: If there is a challenge for being excessive, a report is usually requested from the corresponding Bar Association. Finally, the LAJ issues a decree approving the definitive taxation.
2. Execution of costs: If the condemned party refuses to pay the amount fixed in the final decree of taxation of costs, the winning party can request enforcement (demanda de ejecución), which will initiate the seizure of bank accounts, salaries, or assets of the debtor to cover the debt of the costs, increased by a provisional 30% budgeted for interests and execution expenses.

Mistakes you should avoid

• Believing that the award of costs covers 100% of what your lawyer charges you: The courts calculate the lawyer's costs based on the guidelines of the Bar Associations and the legal limit of 30% of the lawsuit's value. If you have agreed with your lawyer on a very high cuota litis (success fee) or fixed fees that far exceed these scales, you will have to bear the difference yourself, even if you win the trial with costs.
• Not making a prior formal demand for payment in cases of acquiescence: According to Article 395 of the LEC, if the defendant "acquiesces" (se allana — admits the claim and agrees to pay) before formally answering the lawsuit, costs will not be imposed on them, unless the judge finds bad faith. Bad faith is presumed if there was a prior, verifiable formal demand for payment (such as a burofax). If you sue directly without sending a prior burofax and the defendant pays immediately, you will have to bear the costs of your lawyer and procurator.
• Starting lawsuits of indeterminate value without measuring the risk: If the value of the lawsuit is indeterminate or cannot be estimated, the law establishes a fictitious calculation base of 18,000 euros for the purposes of costs (unless procedural rules state otherwise). Losing a trial of indeterminate value can result in an award of costs of several thousand euros.
• Confusing Free Legal Aid with total immunity: If you have been granted the right to free justice (justicia gratuita / court-appointed lawyer), you will not have to pay the costs if you lose the trial, unless your financial situation improves within the following 3 years (venir a mejor fortuna). Likewise, if you win the trial with costs and obtain a financial benefit, you might have to pay the fees of your defense up to the limit of 30% of what was obtained.

Frequently Asked Questions (FAQ)

What happens if I lose a trial but do not have money to pay the costs?

If you are ordered to pay the costs and do not have liquidity or assets, you will be declared insolvent. However, the debt does not disappear immediately. The creditor party has a period of 5 years to execute the judgment and request seizures as soon as your financial situation improves (for example, if you find a job, receive an inheritance, a tax refund, or acquire a vehicle). The only way to avoid this from the start is to have the prior recognition of the benefit of Free Legal Aid.

If I win the trial with costs, do I have to pay my lawyer first?

Yes, as a general rule. The contractual relationship with your lawyer and procurator is independent of the outcome of the trial. You must pay their fees as agreed. Once the cost taxation process is completed and when the opposing party deposits the money into the court's account, you will recover that investment. However, many law firms agree to wait for the taxation of costs to collect if the case is very clear, subject to a signed agreement with the client.

Are court costs paid in lawsuits of less than 2,000 euros?

In verbal trials (juicios verbales) where the value does not exceed 2,000 euros, the intervention of a lawyer and procurator is not mandatory by law. Therefore, according to Article 32.5 of the LEC, whether you win or lose the trial, as a general rule there will be no award of costs for these professionals. Each party will bear their own expenses if they decide to hire them voluntarily. The only exception is if the judge finds manifest temerity or if the defendant resides in a place other than where the trial is held.

What happens to the costs if I decide to withdraw the lawsuit (withdrawal)?

If you withdraw from the process unilaterally (desistimiento) before the defendant answers the lawsuit, costs will not be imposed on you. However, if you withdraw after the defendant has already appeared and answered the lawsuit, Article 396 of the LEC determines that you will be ordered to pay all the costs caused to the defendant, unless the defendant consents to the archiving of the process without the imposition of costs.

In summary

• General principle: In Spanish civil law, whoever loses the trial completely pays the costs of the process (objective defeat).
• Partial estimation: If the judge rules halfway in favor of both parties, each litigant pays their own lawyer and procurator expenses.
• Legal limit: The award of costs against the loser has a maximum limit of 30% of the total value of the trial for lawyer and expert fees.
• Exemption for doubts: The judge can decide not to impose costs on the loser if the matter presented serious doubts of fact or law.
• Collection procedure: Collecting costs requires a post-judgment procedure called Taxation of Costs, directed by the Letrado de la Administración de Justicia.
• Avoid surprises: Sending a burofax as a prior demand before suing is key to ensuring an award of costs if the defendant decides to accept your claims immediately.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.