The purpose of the present analysis is to determine the applicable legal regime to certain procedural acts made in bad faith in relation to the abuse of rights theory, and the lis pendens (same trial pending in the same time before two or more panel of judges) and joined cases institutions.
The analysis started from a particular case in which a claimant filed two statements of claim having the same object in two considerably distant moments (7 years between them) against the same defendant. The only aspects which the claimant drafted differently in the second case file, in order to eliminate risk of identity, were the claims’ phrasing and some additional arguments in his favour which were not inserted in a proper form in the first case file. Nevertheless, through the second statement of claim, the claimant himself raised the lis pendens exception, in order to send the second case file in front of the initial judge and thus to overcome his incapacity to invoke additional arguments in the first case file. The court vested with the judgment of the lis pendens exception stated that the exception is applicable and in the case at hand. Thus, it has sent the second file to be analyzed together with the initial statement of claim. In addition to this, the court fined the claimant for misconduct represented by filing intentionally the two statement of claims having the same object.
In consequence, in the present article we have analyzed the conditions to be met in order to state the presence of an abuse of rights in the light of the lis pendens and joined cases institutions. We have identified the purpose for the regulation of these legal institutions and the similarities and differences between them. In addition to this, we addressed the conduct which the court should have in order to correctly analyze the two statements of claim which are object of the lis pendens exception. Finally, our theoretical conclusions related to the three institutions were applied to our particular case, in order to prove the presence of an abuse of right.
