Answer ... Civil proceedings can be commenced either by serving upon the defendant the writ of summons (atto di citazione)or by filing with the court an application (ricorso), which the court then serves upon the defendant. The ricorso is used, for example, to start separation proceedings which in Italy are a necessary step in order to obtain a divorce in a contentious situation.
In this Q&A, we focus on ordinary proceedings that are started by way of a writ of summons.
After serving the writ of summons, the plaintiff goes on onto to lodge it with the court, thereby registering its formal entry of appearance.
The writ of summons must set out:
- the court that is seized of the proceedings;
- the names and contact details of the claimant and defendant;
- a description of the facts that underlie the claim;
- the legal grounds that underpin the claim;
- the subject matter of the claim, intended as the remedy that is sought through it;
- the evidence submitted (without precluding the submission of further evidence); and
- the date of the first hearing (which must be no later than 90 days – or 150 days if the defendant is served abroad – from service of the writ of summons, with the possibility that the court can add a further 45 days if it finds that it cannot accommodate the first hearing on the date stated in the writ of summons).
The defendant must make an entry of appearance and file a statement of defence at the latest 20 days prior to the date of the first hearing. Any counterclaim must be included in this initial statement; otherwise, it is forfeited. If an entry of appearance is entered into during this 20-day period, not only can a counterclaim not be raised, but that defendant also loses the right to join a third party to the proceedings and to raise any procedural exception that the court cannot raise on its own initiative.
At the first hearing, the court verifies the appearance of the parties. If the defendant has failed to make an entry of appearance, the court will not immediately declare the absence of the party, but will make enquiries as to whether the writ of summons was served in accordance with correct procedure. If that is established, the proceedings will formally go ahead in the absence of the defendant. This does not mean that the defendant cannot participate in the proceedings at a later stage; however, the defendant is precluded from making submissions if the deadlines for them have expired during its absence.
Importantly, there is no such thing as a default judgment in Italy. The court will decide the claim on its merits having gone through the phases of the proceedings set out below, to the extent possible. Clearly, the fact that the court will hear only the claimant’s arguments makes it likely that it will judge in the claimant’s favour, but this is not a foregone conclusion.
If so requested by the parties during the hearing, the court will grant them the following deadlines:
- 30 days to file a brief clarifying or modifying the claim or the defence, including the procedural objections raised in them;
- a further 30 days (ie, from the expiry of the first deadline above) to file a brief that counters the other party’s brief and puts forward new exceptions and to submit documentary evidence and indicate what other evidence it wants to be formed before the court (see question 6); and
- a further 20 days to file a brief setting out further evidence that is needed in order to confute the evidence that has been put forward by the other party.
This marks the beginning of the so-called ‘fase istruttoria’ – the phase dedicated to the gathering of evidence and its assessment by the court.
Once the above deadlines have expired, the court will schedule a new hearing to discuss the admissibility of the parties’ requests concerning evidence. At the end of this hearing, the court will order that the evidence it has admitted be collected. Alternatively, if the court considers that it has already seen enough evidence, it can refer the case for decision without proceeding with the collection of evidence.
The actual gathering of the evidence (eg, the cross-examination of witnesses) happens at a subsequent hearing.
Once it has collected all the evidence, the court will refer the case for a decision. The parties must submit their closing arguments by:
- filing a first brief generally within 60 days – which can be reduced by the court to 20 days – that effectively contains a summary of the proceedings from the party’s point of view, including the definitive request of the remedy sought (to the extent that anything is omitted, this omission is tantamount to a forfeiture); and
- filing a second brief generally within the next 20 days in response to the other party’s brief.
With the exception of the initial writ of summons and the statement defence, which can also be filed physically with the court, all briefs and connected documentation (eg, evidence) are filed electronically (see question 5.4).
Article 702bis of the Code of Civil Procedure has introduced abridged proceedings in cases where there is written evidence in support of the claim.
Notably, money claims which are supported by written evidence are brought through a ricorso for the obtainment of a decreto ingiuntivo (injunctive decree). The court will reach its decision without the ricorso having been served on the defendant. If the injunctive decree is granted, the plaintiff will serve it on the defendant, which will have 40 days to pay (shortened to 10 days for certain kinds of debts) to comply with the request. During this 40-day period, the defendant can file an opposition to the injunctive decree, in which case ordinary proceedings are opened. The court can nevertheless order that the injunctive decree is provisionally enforceable pending proceedings; and can require the claimant to put down with the court security for the amount of the debt that is being enforced.