The Italian judiciary does not enjoy a reputation of speed and efficiency. In the last few years a bill outlining a reform of the civil procedure has been discussed in Parliament, but without being approved by both Chambers.
However, during the month of April, Parliament approved a law introducing a number of changes to the Code of Civil Procedure. Quite oddly, such law is primarily aimed at enhancing the competitiveness of Italian businesses.
The existing system
The most interesting changes concern the preliminary stage of civil proceedings. The current system is structured as follows.
The claimant serves upon the defendant a writ of summons, setting the date of the first hearing (at least 60 days after service or 120 days if the defendant resides abroad). The defendant must enter his appearance within the 20th day prior to the hearing if he has a counterclaim, or within the day of the hearing if no counterclaim is brought.
At the first hearing, the Judge:
- checks the validity of the pleadings;
- orders joinder of third parties, if necessary;
- fixes the date of the second hearing.
The defendant is allowed to present, within the 20th day prior to such second hearing, his or her defences which cannot be raised ex officio (e.g. claim barred by statute of limitation, claim set-off against claimant’s debt to the defendant, improper venue).
At the second hearing
- the parties appear personally or are represented by Attorneys-in-Fact; the Judge makes questions to the parties and attempts to reach a settlement;
- if so requested, the Judge allows the parties to file within 30 days briefs modifying or specifying their conclusions;
- the Judge fixes a new hearing at which the parties shall deal with evidence.
In many cases, at the third hearing the parties are allowed to submit further briefs dealing with evidence and the admissibility of evidence is discussed in a fourth hearing, whereupon the evidence-taking stage begins.
It is clear that the system is cumbersome and potentially slow-moving. On the other hand, such delays often lead the parties to reach out-of-court settlements and allows them to prepare the evidence stage very carefully.
The new system aims to concentrate the preliminary stage of the proceedings described above and thus speed up the whole process. The new structure will be as follows.
The commencement has not changed: the claimant serves onto the defendant a writ of summons, fixing the date of the first hearing.
The first action of the defendant is slightly different. The defendant is still bound to file his response within the date of the hearing (or at least 20 days before if he has a counterclaim), but in the response he also has to present his defences which cannot be raised ex officio. In the previous system this was also possible after the first hearing.
At the first hearing the Judge checks the validity of the pleadings and sets a second preliminary hearing only if:
- joinder of third parties is ordered;
- all the parties’ counsels request that such second preliminary hearing be set; at this hearing the parties will appear personally or will be represented by duly appointed Attorneys-in-Fact, to be interrogated by the Judge, who will also attempt to reach settlement.
In the first hearing, or in the second interlocutory hearing, the Judge also allows the parties to file within 30 days briefs in which the parties (i) modify or specify their conclusions and (ii) submit evidence; 30 further days are allowed to file reply briefs.
After such reply briefs have been filed, the Judge without further hearings decides on the admissibility of evidence and lodges his or her order with the Court’s clerk.
The subsequent hearing might be the second or the third in the whole proceedings, depending on whether a second preliminary hearing has been held. At this stage evidence is taken if necessary. If only documentary evidence is admitted, at such hearing the parties will submit their final conclusions and, after filing of final pleadings, judgment will be issued.
The law, which will hopefully produce a more expeditious and efficient litigation system, will come into force on 1st January 2006.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.