What happens if the defendant does not attend the preliminary hearing?

Question

José Manuel Alburquerque · Accepted Answer

The preliminary hearing (“audiencia previa”) goes ahead anyway with the claimant and the case continues. The defendant does not lose the case by not attending, because their defence remains part of the proceedings and the claimant still has to prove what they are claiming. But the defendant misses out on what is done at that hearing, above all the opportunity to put forward their own evidence, such as witnesses or experts, because in ordinary proceedings (“juicio ordinario”) that is the moment to request it. The same applies if only their court agent (“procurador”) attends without a power of attorney allowing them to reach an agreement or if their lawyer does not attend. What the law says If the defendant does not attend, or attends without their lawyer, the hearing goes ahead with the claimant as far as appropriate. The judge does not give judgment against the defendant for not having attended. It is different if it is the claimant who fails to attend, because the case is then closed, unless the defendant has an interest in it continuing in order to obtain a judgment on the merits. A party is not required to attend in person. But if they do not, their court agent must have a power of attorney allowing them to reach an agreement, to waive the claim or to accept what the other side is asking for. If the court agent does not have one, the law treats that party as if they had not attended. What the defendant loses Not attending does not mean losing the case, but the defendant is left out of a decisive stage: They cannot try to reach an agreement before the judge. They cannot argue procedural issues or object to any clarifications the claimant makes about the claim. They cannot challenge the claimant's documents or expert reports, which will be assessed without any objection from them. They play no part in identifying the facts in dispute, which are the ones that will have to be proved. Above all, they cannot put forward their evidence. The documents they submitted with their defence are already part of the case, but they will not be able to ask for their witnesses to give evidence, for their experts to explain their reports at trial or for the claimant to give evidence. The defendant can attend the trial with their lawyer, question the claimant's witnesses and experts and present their closing submissions, but with the evidence that was admitted in their absence. If the claimant asked for the defendant to give evidence, the defendant will be summoned to the trial and, if they fail to attend without good reason, the judge may treat as true the facts in which they were personally involved and which are unfavourable to them. If the defendant cannot attend If the defendant cannot attend, the simplest course is to give their court agent the power to reach an agreement. If it is their lawyer who cannot attend, for a compelling reason such as a serious illness or the death of a close relative, or if the defendant has been unable to grant that power, the court must be notified immediately, with proof of the reason, so that another date can be set. If the defendant did not even file a defence, they are in default, which is the position of a defendant who does not appear in the proceedings. The preliminary hearing goes ahead without them. They can appear later with a lawyer and a court agent, but the case continues from the point it has reached, without going back.