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Litigation in Colombia

Por Carlos Felipe Pinilla A.
6 de diciembre de 2023 | Publicado en The In-House Lawyer Autumn 2023.

What are the key steps involved in a litigation case in Colombia?

The key steps involved in a litigation case in Colombia are: (i) counseling and evidence collection; (ii) process; and (iii) enforcement of the judgment.

In the first step, it is important to determine the legal issue and the facts of the case, to establish what legal options exist and decide accordingly. Gathering all existing and relevant evidence is, perhaps, the most important step in building a strong case.

Secondly comes the filing of the lawsuit, whose requirements depend on the specialty, but, in essence, they are facts, legal basis, evidence and requests. Then, the defendant files an answer and the judge issues the evidence decree order, among other decisions. Trial comes afterwards, where all witnesses declare their version of the events and, finally, the judge passes judgement. Most of the judicial procedures admit appeal, and, in some circumstances, there are specifically stated resorts that allow the review of the decision by a higher judicial authority (ie, new evidence, criminal judgment that directly influences another case, demonstrated collusion, etc).

Thirdly, comes the enforcement of the judgment. Although there are special procedures designed for this matter, we try to execute it on our own or through a direct approach to the counterparty, so that we can shorten the path and obtain payment as soon as possible.

What is the average duration of a litigation case in Colombia?

In 2004 criminal procedure adopted the oral system and, since then, all other procedural areas have followed, such as civil, commercial, labour law and arbitration. This change improved the duration of litigation, reducing it from an average of 20 years to an average of three years, depending on the type of procedure and the specific matter.

What are the main factors that influence the outcome of a litigation case in Colombia?

There are many factors that influence the outcome of a litigation case in Colombia, but in general terms, there is an average certainty of its outgoing. We consider that the main factors are to collect real and significant evidence and give it to the judge in an organised, harmonious and logical way.

What are the available remedies and damages that can be sought in a litigation case in Colombia?

In Colombia, the available remedies that can be sought in a litigation case, are material and non-material damages. Punitive damages are not provided for in our legal system.

Material damages refer to consequential damages and lost profits. The first ones include actual damages (which can be indexed), future damages and, in specific cases, interests. Lost profits refer to the economic earnings that the plaintiff was going to receive but that, due to the damage, couldn’t receive. It also involves the loss of opportunity.

Non-material damages refer to moral damages. They are only awarded for natural persons and there is a jurisprudential maximum established to be recognised.

Some special damages are also awarded, such as physiological damages or damage caused to the life in relationship with the couple, with the family and/or the society; and constitutionally protected goods, among others.

What are the most common types of cases that your firm handles in Colombian litigation?

PGP is a full-service firm and specialises in the real estate sector, not only structuring the legal basis of the businesses, but also providing legal advice and representing its clients in civil, commercial and criminal litigation mainly arising from real estate businesses, among others.

We provide comprehensive legal representation, mainly involving the real estate businesses and its complexities, such as: fiduciary mechanisms, buyers claims, compliance and crimes related to real estate development businesses, among others.

We also handle corporate disputes, representing our clients at general shareholders meetings and giving legal advice and representation in disputes between shareholders regarding profit distribution, control of the company and hostile takeovers, among others.

Are there any alternative dispute resolution methods available in Colombia, and how do they compare to litigation?

Yes, there are available three main alternative dispute resolution methods, such as arbitration, mediation and conciliation. The last one can be judicial or extra judicial, is carried out before a conciliator and, in many procedures, is a prior requirement to filing the lawsuit.

Their most important advantage is their speed due to the fact that they do have a lower workload than ordinary judges, and that in these methods the parties can choose a conciliator, mediator or arbitrator with specialised knowledge in the matter in dispute.

Can you provide examples of successful litigation cases that your firm has handled in Colombia?

In 2023 the buyers of a luxury building in Bogota accused our client, a building company, of not properly building the millionaire façade. PGP demonstrated that the company built it with professional standards and that its deterioration was caused by lack of maintenance, a burden that is the responsibility of the owners (buyers), thus avoiding a million-dollar sentence for our client.

We also achieved the absolution of another building company in six consumer protection cases in which buyers alleged misleading advertising and requested millions in compensation, thanks to the fact that we demonstrated that the organisation built what it offered in its advertising and in accordance with its commercial offer.

Regarding corporate disputes, PGP managed to maintain control of an infrastructure company in which three groups of shareholders disputed management, profit distribution and other issues. With our advice and representation, our client, who was the company’s founder, maintained control, management, and profits were distributed in accordance with the law.

Recently, we represented the owner of a huge lot, on which a mining concessionaire was located, who opposed to the owner’s desire to carry out real estate development. We represented the owner of the land and accomplished his will, despite the interests of the concessionaire.

We also handle pro bono cases. In 2022 we won the ‘Pro Bono Firm of the Year’ award, a recognition granted by the Pro Bono Foundation of Colombia, that links low-income people with qualified lawyers.

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