Spanish Supreme Court rules that the evidenced illness of counsel voids hearing

After a contract ended, the claimant company began summary eviction proceedings. They asked the court to end the lease, have the property returned and require payment of any rent owed until the property was vacated.

The defendants asked the court to dismiss the claim. They argued that the contract had been automatically renewed, questioned if the claimant had the right to sue and noted that ongoing criminal proceedings for alleged coercion might affect the case.

The court found the claim was disputed and set a hearing for both parties on 11 January 2024 at 14:00.

Request to adjourn the hearing and its refusal

On 10 January 2024 at 16:16, the defendants’ court representative urgently asked to postpone the next day’s hearing because the lawyer was sick and no substitute was available. The request included a hospital report from that day, confirming symptoms, including a sore throat, headache, joint pain, fever, fatigue, and heavy mucus, consistent with type A flu since 8 January 2024. A test confirmed the diagnosis and the doctor prescribed rest and home care.

On 11 January 2024, only the defendants’ representative was present at the hearing. The judge refused to postpone, saying the lawyer’s illness was not proven enough because there was no emergency or hospital attendance record. She also said that, for this type of case, the lawyer’s absence did not harm the defendants’ right to defend themselves. She believed the hearing would still be fair and the claimant could answer the objections.

On 16 January 2024, the defendants’ lawyer asked the court to annul the hearing under article 188.1.5 of the Civil Procedure Act, arguing that the hearing should have been postponed because the lawyer’s illness was properly documented. The court rejected this request on 15 February 2024, saying the judgment could be appealed.

The judge made her decision on 15 January 2024, and it was signed on 25 January. She ruled in favour of the claimant. The court terminated the lease, ordered the defendants to vacate the property by 7 March 2024, required them to pay all rent owed through their departure, and ordered them to pay the legal costs.

Appeal and application for annulment 

The defendants appealed the first instance judgment and also applied for annulment of the proceedings.

The Provincial Court agreed that the lawyer acted properly and that the medical report was enough proof of illness, so the hearing should have been postponed. However, based on previous Constitutional Court decisions, STC 115/2002 and ATC 306/1994, it said that refusing to postpone a hearing does not violate the right to a fair trial. There must be proof that the defendants could not defend themselves, which was not found here. The court explained that: the written defence included all arguments; the objections could be decided based on documents alone; and the lawyer’s absence did not stop the defendants from defending themselves.

The Provincial Court dismissed the appeal and ordered the defendants to pay the appeal costs. The defendants then appealed to the Supreme Court.

Supreme Court decision

Following and expanding on the Constitutional Court’s doctrine, the Supreme Court upheld the appeal in cassation

It held that article 188.1.5 of the Civil Procedure Act should be interpreted to mean that, as a general rule, an unjustified refusal to adjourn a hearing when counsel’s illness is properly evidenced and documented renders the hearing void, unless there are exceptional circumstances such as dilatory intent, abuse of rights, procedural bad faith, lack of diligence, failure to seek a substitute, or, in more exceptional cases, infringement of broader principles like the other party’s right to a timely process or proper administration of proceedings.

The Court established that, as a rule, an unjustified refusal to adjourn a hearing due to properly documented illness of counsel renders the hearing void. There is no need to prove material lack of defence, nor must the court assess whether holding the hearing without counsel might cause such a situation. 

The dissenting opinion 

Justice Seoane Spiegelberg disagreed with the majority and wrote a detailed dissenting opinion. 

He argued that the defendants did not actually lose their right to defend themselves. Instead, he thought they made a formal appeal, claiming their rights were violated, but this would harm the claimant’s rights to a fair trial and a timely decision, which he believed should take priority.

According to the dissenting opinion, several conditions must be met to annul proceedings: a procedural rule was broken; there was a real, not just formal, lack of defence;  the party was not responsible for the problem; and he mistake affected the outcome. He disagreed that holding a hearing without a lawyer automatically makes the process invalid. He argued that each case needs careful review to decide if the mistake justifies cancellation, and there should still be proof of a real lack of defence.

Osborne Clarke comment

This judgment establishes a doctrine to the effect that, as a rule, duly evidenced illness of counsel requires the hearing to be adjourned and that unjustified refusal to do so entails annulment of the proceedings, without any need to prove material lack of defence.

It is essential that adjournment requests are supported by thorough medical documentation. A well-documented and reasoned request increases the chances of adjournment being granted and, if refused, provides a strong basis for seeking annulment of the proceedings.