The extension of the dispute to third parties involved for various reasons in the case is no longer a certainty. Throughout the years at the Court of Bologna the Firm has observed the consolidation of case-law which ‒modifying the traditional interpretation of Article 269 of the Italian civil procedure code‒ rejects the applications for third party proceedings.
This approach has a strong impact on how the legal defense is organized because, once a person is sued, it should no longer be taken for granted – and at this point it should actually be ruled out – that that person may obtain the indemnity by third parties in the same proceedings.
For example, by means of a recent order in a case concerning a claim for compensation due to non-contractual liability on 4 January 2017, the Court of Bologna dismissed the application for third party proceedings filed by the defendant by way of indemnity against the third party, arguing as follows: “Given the principles outlined by Cass. SU 4309/2010 and considering, in particular, that the ascertainment of any third-party liability ‒whether or not shared with that of the defendant‒ not part of (nor covered by) any guarantee relationship, can only result in a lengthening of the proceedings to the detriment of the plaintiff, thus undermining, based on not indispensable reasons, the constitutional principle of reasonable duration of the trial, which in such case is even more damaged, given that it was (or could be/had to be) well known before the trial also to the plaintiff, and taken into account the overall defenses of the applicant and the possibility to bring an action in separate proceedings”.
Therefore, the guiding principle of the approach is that of having speedy trials. Such principle would be prejudiced by the involvement of third parties who were not parties to the proceedings originally filed by the plaintiffs.
The above order is consistent with other decisions issued by other judges in Bologna who have dismissed applications for third party proceedings, even if filed correctly and promptly.
On 1 December 2016, for example, in a case concerning logistics contracts and a compensation claim for damages arising from the wetting of goods stored in a warehouse, the request made by the sued logistic operator to extend the dispute to the owner of the building was denied, “considering the lack of the conditions for authorizing the requested third-party proceedings based on a relationship that is completely independent and different from the one existing between the parties”.
The same happened with reference to the subject of procurement. By means of order dated 8 August 2016, the builder of a structure who was sued for structural defects, was denied to call the subcontractor as guarantor, although the safeguard of the adversarial nature of the experts’ operations to be carried out within the Experts’ Report procedure to assess the claimed damages would have suggest a simultaneous involvement of all parties concerned in the construction of the building.
The approach had already been drawn by earlier case-law with the intention to prevent vexatious actions against third parties, stating that when the initiative of the party applying for third party proceedings proves to be clearly arbitrary, the latter has to bear the third party’s legal costs.
However, the emerging case law is now inclined to simply deny disputes with several parties (except in cases of necessary joinder of parties), with consequences which could be prejudicial in terms of conflicting decisions, as well as of legal defense of the defendant, since the applications for indemnity ‒even if granted in separate proceedings‒ would be effective at the end of a second suit with an evident temporal gap and an additional burden of legal costs.
(Bologna Office – Barbara Michini – 0039 (0) 51 2750020)
