If we consider the changes introduced by the CCP / 15 under the title of the appeals, one of the most relevant modifications is the option to limit the interlocutory appeal to the hypotheses established in the law, listed in the art. 1.015, and which may be occasionally found in other sections of the code, and, strictly speaking, in the extravagant legislation. Among the questions about the topic, it may be included: a) Is the list provided by the law definitive or exemplificative? b) Supposing that the list is definitive, how should such a provision be interpreted?
The legislator’s choice was absolutely not the happiest. The justification could be that the quantity of appeals, which overload the courts, would be hampering the task of judging those appeals and, therefore, more time and energy should be devoted in order to judge the merits of the litigations. It was said, at the time of the legislative process, with an occasional tone of contempt, and a small, but uncomfortable attitude of fun, which illustrates well what Schopenhauer wrote in his work “The Art of Being Right: Ways to Win an Argument”, that the parties would “appeal against everything”, even against a judge’s yawn, or something similar.
This space is pretty small for a proper discussion involving the causes and solutions for the heavy workloads in the courts. However, preserving any other different conviction, none of those obstacles could rationally justify the choice made.
To imagine that limiting the interlocutory appeal could be a solution to reduce the heavy workloads in the courts, with all due respect, has always been a clear misconception.
Indeed, in a system that, in general, provides – not as of today – the granting of the interlocutory relief , what, therefore, allows provisional decisions on the merits of the case; that admits the possibility of stabilization of the interlocutory relief; that provides the origination of material res judicata on the resolution of an incidental issue; that, in addition to the relief granted on the basis of prima facie evidence, admits the so-called action for the execution of an unenforceable instrument as a way to accelerate the final relief; that allows the summary judgment with partial adjudication on the merits – and, in this case, not provisionally; whose provisional satisfaction of the judgment (which is not only of the judgment…) occurs, although with some reservations, as if it was definitive, it was and it is normal and expected that all this would be projected on the activity and routine of the courts.
From the logical point of view, one can not strictly speak of an increase in the workload, but of a workflow that gradually has gained different characteristics: when the court judges an interlocutory appeal concerning a summary judgment with partial adjudication – or possibly concerning one of the situations mentioned above – the judgment is, in fact, on the merits even if it is on a provisional basis. To say that that judgment would have been useless or a waste of time, as the appeal will have to be judged afterwards, is contrary to the reality and the nature of things: work is not being increased, but, to a great extent, it is being performed in advance – such as the granting of the relief – or, at least, it is out of place in time. If the workload of the courts increased, it was not because of the interlocutory appeals, but because of the high quantity of lawsuits that are filed in the courts every day, like patients who seek a hospital that has neither adequate physical nor human structure.
Experience has shown that the above mentioned change in the workflow (not the heavy workload) can be positive: before a preliminary court decision on the merits or on merits issues, even if it is on a provisional basis, the parties often re-evaluate their chances in relation to the final judgment; at least it would be prudent for them to do so. This means a contribution, albeit indirectly, to a quicker resolution of the litigation. To illustrate, one should remember that innumerable cases of ownership litigations are solved only with the granting of the interlocutory relief after a preliminary justification, which is far from being something new for us. In fact, this is the logic of any action for the execution of an unenforceable instrument, which counts on the high probability of a right associated with a preliminary judgment about this plausibility.
In addition, in the CCP / 73 (modified by the laws subsequent to its original text), it had already been established that the possibility of the appeal held on the records would be the rule, and that the interlocutory appeal would be the exception, not exactly because it was meant that the hypotheses of filing the latter would be definitive, but because of the alternative that used to be given to the court to convert the interlocutory appeal into an appeal held on the records. This solution, although it was not an ideal one, used to be more equitable and accurate: it gave the court the possibility, on a case-by-case basis, to verify whether the damages claimed by the appellant would be current or potential; or, from another angle, whether they would be significant or not. Such rule used to confer the court the burden of verifying whether the grounds of the appealed claim were relevant and, based on that, to judge, on a case-by-case basis, and with the expected supporting justification whether the matter of the appeal should be decided immediately or whether it could wait for a possible appeal.
Intending to exhaust the hypotheses in which the interlocutory appeal can be filed, the legislator, although with good intentions (of which, a popular proverb says that the road to a “certain hot place” appears to be paved with them), ended up being unrealistic, and has ignored some relevant hypotheses, which, even the public order may be interested to know of right away: the jurisdiction, and the value of the claim (on its dimension of a calculation basis for the judicial fees) are eloquent examples. By acting like this, the legislator did not consider the lesson of jurisprudence that was formed at the time of the special appeal held on the records for the cases which, despite the legal text, admitted the immediate filing of the challenge in a higher court. In short, when taking away from the court the prerogative of determining the regime of the appeal, the law made a mistake, and now we are all paying the price of it.
These fruits are really bitter because nowadays, and despite the respectful criticisms that may come up, one can not simply ignore that the law has provided the hypotheses for the filing of the interlocutory appeal; and, it can not even be said that this limitation would be unconstitutional. It does not seem possible, to that extent, to say that the list would be merely exemplificative because this would be contrary to the text of the law. This is significant because, being the decision unappealable, but having an immediate encumbrance (and this does not necessarily have to be irreparable), it may be considered, once again, the possibility of an injunction, which can be technically seen as a step backward, because the system had wisely developed to solve the issues of challenges concerning appeals only, without the requirement of independent actions – historically invoked only to redress gaps and imperfections in the system. Understandably, the courts highly dislike those other means of challenges, perhaps fearing that a possible complacency with their admissibility, besides frustrating the scope of the law, may paradoxically give rise to an increase in the quantity of lawsuits, if one considers the intention already mentioned. This all creates undeniable harm to the safety and predictability of how the system works – or, how it should work.
What is left, then, is to give an accurate interpretation to the rule and, to do this, the way seems to be the following: the rule of art. 1.015 is undoubtedly a limiting factor of the procedural competence and, to that extent, it must be regarded as a restrictive rule of law.
As such, the rule allows interpretation, as long as the result is not a restraining interlocutory appeal. Thus, to say that the legal hypotheses in this case would be definitive does not prevent the interpretation of the legal text in a systematic and teleological way, and, as a result, one may expect a certain enlargement process for the admissibility of the appeal. However, this is a topic that deserves to be addressed in a forthcoming article.