The following is the judgment Piraeus Three-Member Court of Appeals 224/2023, in which a lawyer is the defendant in a legal malpractice action.
THE THREE-MEMBER COURT OF APPEALS OF PIRAEUS
(2nd Section)
Composed of the Judges Vasileios Papanikolas, President of Appellate Judges, Stavroula Liakea, Appellate Judge, and Maria Tsialta, Appellate Judge-Rapporteur, and the Clerk, K.S.
Sat in public session, in its courtroom on ……………….., to try the case between:
The appellant: …………………. who appeared before the Court through his attorney-in-fact, lawyer Andriani I. Zachariou (Athens Bar Association, Reg. No. …….., who produced advance contribution and stamp receipt no. A …….).
The respondent in appeal: ………………… who appeared before the Court in person, pursuant to Article 242(2) of the Code of Civil Procedure (KPolD), by means of the declaration dated 15-2-2023.
The appellant filed the appeal dated 15-2-2022 (Piraeus Court of First Instance filing no. GAK/EAK/………../2022, Piraeus Court of Appeals filing no. GAK/EAK/ ………./2022) against final judgment no. 136/2022 of the Piraeus Multi-Member Court of First Instance (ordinary procedure), which was entered in the docket and listed for hearing on the date set out at the beginning of the present judgment.
The attorneys-in-fact of the parties, who appeared as set out above, duly filed briefs, requesting that their pleas be accepted.
HAVING STUDIED THE CASE FILE
HAVING DELIBERATED IN ACCORDANCE WITH THE LAW
I. The present appeal against final judgment no. 136/2022 of the Piraeus Multi-Member Court of First Instance, which was issued in adversarial proceedings under the ordinary procedure, was filed lawfully and within the time limit, since it was filed with the Registry of the first-instance Court on 18-2-2022, and there is no evidence, nor do the parties invoke, service of the contested judgment (Articles 495, 511, 513(1)(b), 516(1) and 518(2) of the Code of Civil Procedure (KPolD)). Therefore, the present appeal must be formally accepted and further examined as to the admissibility and merits of its grounds, in accordance with Article 533(1) of the KPolD under the aforementioned procedure, given that for the admissibility of the legal remedy the filing fee of one hundred and fifty euros (€150.00) provided for under Article 495(3) of the KPolD has been paid (see in this regard the pleading filing record of the Clerk of the Piraeus Court of First Instance, the electronic filing fee no. ………………. and the document of 16-2-2022 confirming the successful execution of payment thereof).
II. The plaintiff, now appellant, by his lawsuit dated 7-9-2020 (filing no. GAK/EAK/…………../2020) under the ordinary procedure, filed before the Piraeus Multi-Member Court of First Instance, invoking unlawful acts and omissions and gross negligence on the part of the defendant, now respondent in appeal, a Piraeus lawyer, to whom he had granted the specifically described mandate concerning the filing of an application for annulment before the administrative courts, sought an order requiring the defendant to pay him the sum of €100,000 as damages as well as the sum of €15,000 as pecuniary compensation for moral damages, both sums with statutory interest from the day following service of the lawsuit until full settlement. On the above lawsuit, the contested judgment was issued, by which the first-instance Court dismissed it as inadmissible on the ground that the lawsuit had not been accompanied, on the one hand, by the documentary evidence which the plaintiff invoked to prove his allegations, and, on the other hand, by the special power of attorney to the attorney-in-fact who signed the lawsuit. By the present appeal, the appellant complains against the contested judgment on grounds set out in greater detail, namely erroneous application and interpretation of the law and erroneous assessment of the evidence by the first-instance Court, as set out in greater detail, and seeks the acceptance of his appeal, the setting aside of the contested judgment, the acceptance of the lawsuit filed under no. GAK/EAK/………/2020 and the order of the respondent in appeal to pay his court costs for both levels of jurisdiction.
III. According to Article 73 of the Introductory Law of the Code of Civil Procedure (EisNKPolD), “1. A legal malpractice lawsuit against a lawyer, notary public, unsalaried land registrar, arbitrator, court clerk and bailiff falls within the territorial jurisdiction, in accordance with the provisions of the Code of Civil Procedure, of the multi-member court of first instance, which adjudicates under the ordinary procedure. 2. The lawsuit, which is drafted in accordance with Articles 118 and 216 paragraph 1 of the Code of Civil Procedure, must: a) contain all the grounds on which the plaintiff bases the legal malpractice lawsuit, and b) accurately list all the evidentiary means it invokes to prove the grounds, otherwise nullity ensues. 3. The following shall be attached to the lawsuit: a) the documentary evidence which the plaintiff invokes to support the grounds of the lawsuit, in originals or certified copies, b) a special power of attorney to the lawyer who signs the lawsuit, otherwise it is inadmissible. 4. A legal malpractice lawsuit is permitted only if it is based on intent or gross negligence or denial of justice and the plaintiff has suffered damage from such acts or omissions. 5. A legal malpractice lawsuit is not permitted when six months have elapsed from the act or omission invoked by the plaintiff. 6. If the legal malpractice lawsuit is dismissed for any reason, no new lawsuit may be filed for the same case, on the same or other grounds, and the plaintiff is ordered to pay the costs, and may also be ordered to pay a monetary penalty under Article 205 of the Code of Civil Procedure.”
IV. In the present case, from the re-evaluation of the lawsuit and the documents produced by the parties before the first-instance Court, the following are established: The appellant filed before the Piraeus Multi-Member Court of First Instance, against the respondent in appeal, a lawyer of the Piraeus Bar Association, the legal malpractice lawsuit dated 7-9-2020 (filing no. GAK/EAK/ …………./2020). In the lawsuit pleading, the appellant listed the evidentiary means in order to prove his allegations, a fact which was also accepted by the contested judgment of the first-instance Court.
However, the documentary evidence which the appellant as plaintiff invoked in the lawsuit to prove his allegations, as well as the special power of attorney to the signing attorney-in-fact, lawyer Andriani I. Zachariou, were not attached to the lawsuit so as to form a single body with it, as the law requires (Article 73(3) of the EisNKPolD). On the contrary, the appellant, simultaneously with the filing of the lawsuit, filed with the Registry of the first-instance Court the documentary evidence referred to in the lawsuit and the special power of attorney to his lawyer, but this does not satisfy the conditions for the admissibility of the lawsuit, since the law is not satisfied with the mere simultaneous filing of the relevant documentary evidence, but requires their attachment to the lawsuit so that they form a body of the lawsuit and are therefore co-served on the defendant (Areios Pagos 829/2008, published in the legal database “Nomos”; Piraeus Court of Appeals 763/2014, published in the legal database “Nomos”).
Therefore, on the basis of the foregoing, the first-instance Court correctly applied and interpreted the provisions of Article 73 of the EisNKPolD and Articles 118 and 216(1) of the KPolD and dismissed the lawsuit as inadmissible. As a result, the contrary contentions raised under the relevant ground of appeal must be rejected as unfounded on the merits. Likewise, the ground of the present appeal consisting in the erroneous assessment of the evidence by the first-instance Court must be rejected as inadmissible, being futile, since the first-instance Court dismissed the lawsuit as inadmissible and did not proceed to examine its merits.
Furthermore, the contentions raised for the first time before this Court, regarding alleged gross negligence on the part of the staff of the Registry of the Piraeus Court of First Instance concerning the manner of drafting the legal malpractice lawsuit, must be rejected as inadmissible, since the said contentions do not constitute grievances directed against the contested judgment. Therefore, on the basis of the foregoing, the present appeal must be rejected as unfounded on the merits. Furthermore, it must be ordered that the filing fee of one hundred and fifty euros (€150.00) paid by the appellant be transferred to the Public Treasury in accordance with Article 495(3) of the KPolD, due to the dismissal of the present appeal.
Finally, following a relevant request, the court costs of the respondent in appeal for the present level of jurisdiction must be imposed on the appellant on account of his defeat (Articles 106, 176, 183 and 191(2) of the KPolD), as specifically determined in the operative part of the present judgment.
FOR THESE REASONS
Adjudicating in adversarial proceedings between the parties
Formally accepts and substantively dismisses the appeal.
Orders the transfer to the Public Treasury of the filing fee paid by the appellant, in the amount of one hundred and fifty euros (€150.00), and
Orders the appellant to pay the court costs of the respondent in appeal for the present level of jurisdiction, which it sets at the amount of three hundred euros (€300.00).
Decided and adjudicated in Piraeus on 16 March 2023 and published in extraordinary public session in its courtroom, in Piraeus on 27 April 2023 without the presence of the parties or their attorneys-in-fact.
THE JUDGE THE CLERK
FREQUENTLY ASKED QUESTIONS ON LEGAL MALPRACTICE LAWSUITS AGAINST LAWYERS
1. When can I bring a legal malpractice lawsuit against a lawyer?
The legal malpractice lawsuit is provided for in Article 73 of the Introductory Law of the Code of Civil Procedure (EisNKPolD) and is brought only when the lawyer acted with intent, gross negligence, or denial of justice, resulting in damage to the client. Mere failure in a court case or a mistaken assessment is not sufficient, since a lawyer is liable only for serious misconduct and not for every form of negligence. Typical examples include: failure to file a legal remedy within the time limit, failure to file briefs, failure to appear at the hearing without notice, and erroneous drafting of a pleading leading to its dismissal. The client must prove specific damage that is causally linked to the lawyer’s conduct.
2. What can I claim through a legal malpractice lawsuit?
Through a legal malpractice lawsuit, damages are claimed for the actual loss and lost profits caused by the lawyer’s conduct, as well as pecuniary compensation for moral damages. The amount depends on the subject matter of the lost case and the seriousness of the breach. For example, if a deadline for an appeal in a tax penalty case has been missed, the damage may amount to the amount of the penalty which can no longer be annulled. Statutory interest from the service of the lawsuit is also awarded. The lawsuit is filed before the Multi-Member Court of First Instance of the place of residence of the defendant lawyer and is heard under the ordinary procedure.
3. Within what time must the lawsuit be filed?
The time limit is particularly short: just six months from the act or omission of the lawyer invoked by the plaintiff, in accordance with Article 73(5) of the EisNKPolD. If this six-month time limit elapses, the lawsuit is dismissed as inadmissible and the right is definitively lost. Furthermore, if the lawsuit is dismissed for any reason, no new lawsuit may be filed for the same case, even on different grounds. For these reasons, timely consultation with a specialised lawyer is critical, so that the lawsuit is properly drafted from the outset.
4. What documents must be attached to a legal malpractice lawsuit?
The law imposes particularly strict formal requirements. The body of the lawsuit must include, as a single text, on the one hand all the documentary evidence on which the plaintiff’s allegations are based (in originals or certified copies) and on the other hand the special power of attorney to the lawyer who signs the lawsuit. As demonstrated by judgment Piraeus Three-Member Court of Appeals 224/2023, mere simultaneous filing of the documents with the Registry is not sufficient — if the documents do not form a body with the lawsuit and are not co-served on the defendant, the lawsuit is dismissed as inadmissible, without examination of the merits.
5. What are the chances of my lawsuit succeeding?
The chances depend on the ability to prove two elements: gross negligence or intent and a causal link with the damage. In practice, it must be proved that, had the lawyer acted properly, the outcome of the case would have been favourable. Case-law is strict and dismisses lawsuits which do not comply with the formal requirements (attachment of documents, special power of attorney, six-month time limit, accurate listing of evidentiary means). In cases where the breach is clear-cut — e.g. proven loss of a deadline or non-execution of a mandate — the chances increase significantly. Each case, however, is judged on its own merits, on the basis of its specific facts.
6. What is the role of the lawyer in a legal malpractice lawsuit?
The legal malpractice lawsuit is one of the most formally demanding procedures in civil procedural law, and the slightest omission leads to dismissal without a second chance. Our firm undertakes the study of the file in order to assess whether gross negligence or intent is present, the collection and proper attachment of all documentary evidence, the issuance of the special power of attorney, the careful drafting of the pleading with accurate reference to grounds and evidentiary means, as well as timely filing within the six-month time limit. At the same time, it represents the client at first-instance and appellate level, with the aim of obtaining full damages and moral damages.