The compensation of the consultant appointed by the Court may be denied by the judge if the Court's expert requests the remuneration for his/her activities and expenses after a specific deadline.
Sadly, it is quite frequent that the Court's consultant runs late in the deposit of his/her technical report, yet it can also run late in requesting the Court to assign the due compensation and reimbursement for expenses incurred while caring out the assigned task.
Article 71 of the Italian Presidential Decree no. 115/2002 foresees a specific hypothesis of loss of the right to demand compensation, in the following case: “The compensation's request for the activities and expenses incurred in during the execution of the tasks assigned by the judge must be filed within 100 days from the date of the testimony, or the date of the execution of said activities”. The term goes up to 200 days from the date of the trip if the Court's consultant has to carry out the activities outside the jurisdiction of the judge giving the assignment (section 2, article 71 cit.).
Therefore, the Court's consultant has only 100 days, counting from the execution of the assignment (i.e. filing of the final report), to request the remuneration for the activities carried out and the reimbursement for expenses incurred in, such as laboratory tests, possible auxiliaries and so on. It is clear, therefore, that the consequences of a simple distraction or oversight can be important.
Should the request for compensation be filed when the deadline has already expired, the Court shall reject such request, declaring the loss of the right to claim compensation. Said declaration of the Court can be challenged by proposing a summary judgement (see article 15 of the Italian Legislative Decree 1st September 2011 no. 150).
The challenge is decided by the head of the judiciary office to which the judge who issued the challenged decree belongs (article 170 DPR 115/2002 by ordinance, which is not subject to appeal but can be challenged before the Italian Court of Cassation (see article 360, section 4 of the Code of Civil Procedure).
The Supreme Court has clarified some aspects of the discussed loss of the right, contained in the provision of article 71 DPR no. 115/2002:
– First of all, in the light of article 2966 of the Italian Civil Code, the loss of the right shall be prevented by a specific lawful act, which in our case, is the formal request filed with the Court to obtain compensation for the activities executed by the judge's consultant;
– Secondly, once the deadline of 100 days has elapsed, the consultant cannot invoke the longer statute of limitation of the right to compensation. In fact, the Italian Supreme Court affirms that the survival of the right even after the deadline “…it is groundless since the right can be exercised within the limits of its statute of limitation as long as the right's loss has not yet occurred. The loss of the right following the expiration of the deadline prevents who was once entitled to it from its exercise, notwithstanding the fact that the statute of limitations has not expired yet…” (see Civil Court of Cassation, Section II, 4th March 2015, no. 4373);
– The material capability of the consultant to quantify exactly the expenses incurred during the activities cannot be considered the dies a quo for the mentioned 100 days deadline. As a matter of fact, the starting date cannot depend on the auxiliary of the Court's consultant who runs late in the quantification of its own compensation (see Court of Cassation cit.).
In conclusion, it seems that the Court's expert who carelessly forgets to file within the terms of the law a formal request for the compensation of his activities and expenses has no choice other than accepting the loss of his right to be paid.
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.
