Who pays the costs if the defendant accepts the claim (“allanamiento”)?

Question

José Manuel Alburquerque · Accepted Answer

It depends on when the defendant accepts the claim (“allanamiento”), that is, when they accept what is being sought from them in the claim. If they do so before filing a defence, in principle they do not pay the costs, unless the judge finds bad faith or abuse. The law considers that there is bad faith, for example, if before the proceedings they had already been asked to comply by a means that provides reliable proof or if they rejected an attempt to reach an agreement. If they accept the claim after filing a defence, they will normally pay the costs, like a party who loses the case. If the defendant accepts the claim before filing a defence Accepting the claim early usually works out cheaper. If the defendant accepts the claim before filing a defence, the law does not order them to pay the costs and each party pays its own. But the judge will order them to pay, giving reasons, if the judge finds bad faith or abuse of the public justice service, which means using the courts without justification. The law considers that there is bad faith in these cases: If, before the claim, a reasoned demand to comply was made on them by a means that provides reliable proof, that is, with a written document that leaves a record, such as a “burofax” (a certified letter with proof of content) or a formal demand made before a notary, explaining what was being claimed from them and why. If they rejected the agreement they were offered or refused to take part in an appropriate dispute resolution method (“MASC”), such as negotiation or mediation. In addition, the law generally requires an attempt to reach an agreement before suing. If the defendant failed without good reason to attend that attempt when it was compulsory or had been ordered by the court, they will be ordered to pay the costs if they later accept the claim, unless the judge finds exceptional circumstances. So anyone who knows they owe the money saves more by paying or reaching an agreement before being sued. If the defendant accepts the claim after filing a defence If they accept the claim when they have already filed a defence, the general rule on costs applies. The judge will order them to pay the costs, as with a party who loses the case, unless the case raised serious doubts of fact or law. By then the claimant's lawyer has already done a good part of their work, so the costs tend to be higher. What is paid for that lawyer and for the experts is capped at one third of the value of the case, unless the judge declares that the defendant acted with recklessness (“temeridad”). If the defendant pays after the claim is filed Paying what is claimed after receiving the claim is not the same as accepting it, but it usually brings the case to an end. If the claimant agrees to treat it as concluded, the case is closed without a costs order. If not, for example because the claimant is also seeking the costs or disputes that everything has been paid, the judge decides. Many courts then apply the same approach as for acceptance of the claim, so that, if payment had previously been demanded in writing, the defendant is likely to be ordered to pay the costs.