First instance, appeal and cassation: what each stage means

When a judgment is served, immediate questions arise: is the proceeding over, can it be appealed, will there be another trial, is it possible to go to the Supreme Court?

To answer them it helps to understand the differences between first instance, appeal and cassation. Each serves a purpose and has its own rules. They do not form an automatic succession of opportunities to argue the same matter again.

This guide uses the Spanish civil process as its reference. Criminal, contentious-administrative and employment proceedings have their own systems of remedies.

1. The differences between first instance, appeal and cassation

The Ley de Enjuiciamiento Civil distinguishes the review carried out on appeal from the cassation remedy and sets its own limits for each.

The first question after any decision should be what the law allows in that specific proceeding.

2. What happens at first instance

First instance is the initial setting in which the judicial dispute is raised and decided.

In a declaratory civil proceeding the parties set out their claims and arguments, file the relevant documents and propose evidence in accordance with the applicable rules. The specific course varies with the type of proceeding.

Not every matter involves the same hearings, and a trial hearing is not necessarily required.

Why it matters to prepare the case from the outset

Before bringing a claim or responding to one, it is worth putting in order:

• The facts and their dates.
• The contracts and their annexes.
• The payments and the amounts in dispute.
• The communications between the parties.
• The relevant photographs and technical reports.
• The outcome sought.

In a claim over defective works, for instance, it matters to distinguish what was contracted, what was carried out, which defects are attributed to the professional and how the loss is calculated.

It is not prudent to hold back documents or arguments on the assumption that they can be freely introduced later if there is an appeal.

3. What a civil appeal is

An appeal allows a party to seek review of certain decisions so that the findings challenged are set aside or amended.

The review may cover questions of fact and of law within the framework set by the law and by the claims made at first instance. The appeal must state what is challenged and why.

Can every judgment be appealed?

No. The law determines which decisions may be appealed and the exceptions. For example, it excludes from appeal judgments given in verbal proceedings determined by amount where that amount does not exceed 3,000 euros. That limit must not be extended automatically to any proceeding of that value.

Is there a second trial with all the evidence?

Not necessarily. An appeal does not automatically repeat the trial, nor does it allow any document omitted earlier to be produced.

The admission of documents and the taking of evidence at second instance are subject to specific legal situations.

That is why assessing a remedy requires studying the complete file and the steps already taken.

4. What civil cassation is

Cassation is a remedy with its own access requirements and grounds. It is not enough to state that the decision is unfair or that the evidence should have been assessed differently.

The rules cover infringements of procedural or substantive law and, as a general rule, require interés casacional, with the statutory exception concerning certain judgments on fundamental rights.

What interés casacional means

It relates to matters such as opposition to case law doctrine, the existence of contradictory criteria between Provincial Courts, or the application of rules on which there is no Supreme Court doctrine, in the terms laid down by law.

Its purpose is not to be confused with the economic or personal importance the litigation has for the parties.

In addition, the assessment of evidence and the finding of facts fall outside cassation, save for the statutory exception of an error of fact that is patent and immediately verifiable from the record itself.

Does the Supreme Court always decide?

As a general rule civil cassation falls to the First Division of the Supreme Court. There are situations attributed to the Civil and Criminal Divisions of the High Courts of Justice in relation to foral or special civil law, under the conditions laid down by law.

5. A definitive judgment and a final judgment are not the same

In everyday language, "definitive" may seem to mean "no longer open to appeal". In procedural terms that equivalence is not correct.

A definitive decision ends the first instance or decides specific remedies. A final (firme) decision is one against which no remedy lies, either because the law does not provide for one or because the time limit has expired without it being lodged.

When a judgment is served, its exact procedural position should be checked. The title of the document or an informal explanation does not replace that review.

6. Does appealing prevent enforcement of the judgment?

Not always. The existence of a remedy does not mean that every consequence of the judgment is suspended.

In civil proceedings certain judgments ordering payment may be enforced provisionally while they are not yet final, subject to exceptions and conditions. If the enforced decision is set aside, obligations to return or make good may arise.

Two questions must therefore be analysed separately: whether a remedy is appropriate and what may happen while it is decided.

7. What to weigh before deciding to appeal

The decision requires comparing the outcome sought with the legal possibilities and the cost of continuing.

These questions help to prepare the consultation:

1. 1Does the decision allow a remedy?
2. 2Which findings are to be changed?
3. 3Which specific errors can be argued?
4. 4What are the limits of the review?
5. 5Which time limit and requirements must be met?
6. 6What fees, costs and risks are involved?
7. 7May enforcement start or continue?

The risk of costs must also be reviewed. The law governs the costs of appeal and cassation, so continuing may have economic consequences beyond the professional fees themselves.

8. Remedies differ according to the jurisdictional order

This explanation must not be transferred in full to any litigation.

In the social order, for example, there is the suplicación appeal before the Social Divisions of the High Courts of Justice, subject to the situations established by law.

Criminal and contentious-administrative matters also have their own rules.

Before speaking of a "second" or "third opportunity", the proceeding and the specific decision should be identified.

Frequently asked questions about first instance, appeal and cassation

Does every dispute go through all three?

No. There may be no remedy available, its requirements may not be met, or the decision may be taken not to lodge it.

Can I produce on appeal documents I forgot to file?

Not freely. It must be checked whether they fall within one of the legal situations that allow them to be admitted.

Is cassation a way to repeat the trial?

It is not a general third instance. Its scope is limited by the rules governing the remedy.

Does winning at first instance guarantee the final result?

It does not guarantee that the decision will stay the same if an appeal is lodged. Which parts of the decision are challenged must also be reviewed.

What should I do if I receive an unfavourable judgment?

Keep the complete document and the date of service. Ask for a review as soon as possible in order to assess the remedies and requirements that apply.

Advice on assessing a judgment and the remedies against it

At MH Legal & Seguros we advise national and international clients on disputes governed by Spanish law.

From our offices in Dénia, Gandía and Villalonga we handle matters throughout Spain. We review the decision and the documents in the proceeding in order to explain the available options, their limits and the steps they require.

You can write to info@mhlegalyseguros.com. If you have received a judgment, provide the complete document, its date of service and the information available on the earlier steps.