Is the claim refused for lack of a “MASC” (appropriate dispute resolution method)?

Question

José Manuel Alburquerque · Accepted Answer

Yes. When the law requires an attempt to reach an agreement first, the court will not admit the claim if no attempt was made or if the attempt is not proved. But the two situations are not the same. If the attempt was made before suing and all that is missing is an explanation of it in the claim or proof of it, the court may allow a period to put this right, warning that, if this is not done, the claim will not be admitted. If no attempt at all was made, the defect cannot be remedied and the claim is refused, so a new attempt to reach an agreement will have to be made and the claim filed again. When it is not admitted The “Ley de Enjuiciamiento Civil”, Spain's Civil Procedure Act, says that claims are not to be admitted when, where the law requires it, there has been no recourse to an appropriate dispute resolution method (“MASC”), which is any serious way of seeking an agreement without a judge. Nor are they admitted when the claim does not describe the attempt at negotiation. In practice, the courts reject the claim in cases such as these: There was no attempt at all before the claim was filed. The attempt had not ended when the claim was filed, for example because the thirty calendar days that the other party has to reply had not yet passed. What was negotiated does not match what is sought in the claim. Only a demand for payment announcing that a claim would be brought was sent, without an invitation to negotiate. In Barcelona, it is a criterion agreed by the civil sections of the “Audiencia Provincial” (the provincial appeal court) that this is not enough. The first to examine the claim is the court clerk (“letrado de la Administración de Justicia”), formerly called the court secretary (“secretario judicial”). If the clerk finds a defect that can be corrected, they allow a period for this to be done. If it is not corrected, the clerk passes the claim to the judge, who decides whether to admit it. What can be corrected and what cannot The law requires the court to allow defects in the parties' pleadings to be corrected where possible. In Barcelona, it is a criterion agreed by the civil sections of the provincial appeal court that the difference lies in the following: It can be corrected if the claim does not explain the attempt or if proof of it has not been submitted. The court requires this to be done and warns that, if it is not, it will not admit the claim. It cannot be corrected if there was no genuine attempt at all that meets the requirements. In Barcelona, it is also a criterion agreed by the court clerks that the period for correction cannot be used to make the missing attempt, because it must precede the claim. If the claim is not admitted The refusal to admit the claim does not decide who is right. The claimant can appeal against it to the provincial appeal court if they believe that the attempt was sufficient. They can also make the attempt to reach an agreement now and, if there is no agreement, file a new claim. Meanwhile, time passes. If the time limit for claiming is short, especially if it is a time bar (“caducidad”), it may expire before the new claim is filed. That is why it is advisable to make the attempt in good time and to check, before filing the claim, that all the evidence is attached.