Please note the below article has been updated.
As we have just voted for BREXIT, this may be an opportune moment to relay my very limited experience of litigation in Europe.
I, and the Lloyds Banker director who sponsored Heritage on the London Stock Exchange purchased IPO shares in a major Heritage supplier in 1987. When Heritage was closed by Lloyds in 1996, I needed these shares. I was asked: "What shares"? by the owner of the company, who had arranged the share purchase for us. This, at that time, was particularly hurtful.
Although these were bearer shares, we had a receipt from a member of the Lisbon stock exchange that they were holding these shares. We took the matter of the "What shares" to the Portuguese Stock Exchange (CMVM), who investigated.
Their investigation concluded that a criminal act had been committed against us. But as this was more than 10 years before the Complaint and Portugal has a limitation period of 10 years on Criminal actions we could not bring that action. The CMVM suggested we bring a civil action, which they would support, one that was not subject to such a limitation period.
Which we did: CMVM were true to their word.
We found a firm of what we had believed to be solicitors that offered to take it on contingency. This firm proved to be Brazilian, not Portuguese. They had no rights of audience before a Lisbon Court. The contingency arrangement did not apply to another firm we needed to represent us in Court.
We thought the additional firm were barristers. They were not, so the contingency arrangement did not apply. We learnt Portugal did not have solicitors and barristers, they just have advocates.
We then instructed a small English firm that was going to relocate to Portugal. They did not appear to have any interest apart from charging us a monthly retainer. We then instructed an English firm, with an office in Lisbon. When we attempted to get a problem resolved through the English part of the firm, we found out it had split from its Portuguese arm.
The Banker at this stage dropped out of our side of the litigation. I contacted the Portuguese Chamber of Commerce and was introduced to a proper firm. I finally started to begin to comprehend the Portuguese process.
I learnt that there are virtually no litigants in person in Portugal.
No need for Help4LiPs.
If you bring an action or defend an action, you pay your own costs: win or lose.
Portugal has very few LiPs. The ones they do have allegedly normally win, as the Judges feel sorry for the mess they are making of their case. This is the comment of my advocate, who may not be entirely neutral.
I visited Lisbon again in 2012 and gave oral evidence. Portugal employs the inquisitorial method, so I was cross-examined by a lady judge, who was trained to be a judge. She had not previously been an advocate, so had a different approach. When my evidence did not agree with the Defendant, I was sat down next to him, with an interpreter on my other side. The Judge asked us both questions, which I answered through my interpreter. The judge repeated a comment a number of times after listening to the defendant. When I asked my interpreter what the judge had said, I was told she had said: "that is incredible". The Judge found it so incredible that she fined my opponent 800 Euros for litigating in "bad faith".
Litigating in "bad faith" and the matter being proven to a criminal level, my opponent lost the case, but won the Appeal. I was asked to prove a negative, that I had not collected the shares.
With the assistance of a number of academics (aided by Bertrand Russell's teapot) the Supreme Court accepted my pleading that I could not prove a negative.
I finally won in 2016 a case that had started in 1987.
Meanwhile, my opponent had gone through yet another divorce and allegedly had no money. I am now about to get part of one of his pensions at the rate of 400 euros a month.
Moral of the story, in the EU (Portugal) as in the UK:
AVOID LITIGATION, IF YOU POSSIBLY CAN!
Jeff Lampert
founder of diyLAW
How do people without legal training deal with having to go to court?
Help4LiPs is developing an interactive game, ‘Virtual Litigation - The Game’ which gives LIPs the chance to virtually take their case through the entire justice process, and get a feel of what litigation is all about.
The article was published on Legal Cheek website.
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.