Provincial Court of Barcelona confirms that obstructing access to sources of evidence can lead to a statement of facts admitted in the main lawsuit
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SubscribeThe 15th section of the Provincial Court of Barcelona has, through order 187/2025, of October 2 (ECLI:ES:APB:2025:10103A), confirmed an order by Commercial Court No. 11 of Barcelona[1] which applies article 283 bis h) Code of Civil Procedure (“LEC”) concerning access to sources of evidence and, in the case of obstructive behavior, declares admitted the facts established by the unsubmitted sources of evidence, including the full passing-on of the overcharge to end clients.
In the part of the proceedings on measures for access to evidence, the court ordered the submission of essential documents for reviewing and analyzing the alleged damage claimed by the plaintiff. It requested information on the structure of supply costs; information about the plaintiff’s main clients; analytical documents on price setting, projects and public tenders; and the database and the codes used by plaintiff’s experts for the econometric study submitted with the claim. This information was decisive for checking whether the claimed overcharge had been absorbed internally by the plaintiff or had been passed on to the end clients.
Despite the extensions granted and the express warning about the possible application of the consequences of article 283 bis h) LEC, the plaintiff only submitted part of the documents required, stating contradictions about its availability and claiming, too late, an alleged material impossibility to deliver all the documents. In its review of the events, the provincial court observes a dilatory and contradictory behavior, stating that there is a “clear intent to obstruct in relation to the obligation to provide access to the evidence agreed on.”
On that basis, the court confirms the application of the consequences established under article 283 bis h) LEC, considering admitted the facts established by the unsubmitted sources of evidence. In particular, it is considered proven that the possible overcharge claimed would have been, if applicable, fully passed on to the end clients, with the resulting inexistence of compensable damage for the plaintiff.
Therefore, article 283 bis h) LEC empowers the court to draw adverse inferences in the case of obstruction, but it also it makes it possible, when the inaccessible source of evidence is decisive for measuring the damage and its potential impact, to declare proven—in the main proceedings—that the overcharge, if any, was transferred to the end clients.
To conclude, the Provincial Court of Barcelona endorses a rigorous application of article 283 bis h) LEC when there is obstructive behavior that prevents the opposing party and the court from checking the core elements of the damage. In this context, the passing-on defense takes on a decisive relevance: the admission of the facts leads to, in practice, the dismissal of the claim as it is proven that any overcharge borne was passed on to the end clients and that, consequently, the plaintiff suffered no harm.
[1] Order no. 769/2023, of December 19, issued by senior judge José María Fernández Seijó.
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