Drafting techniques: from recent case-law contributions on risk of inadmissibility of deeds with the Supreme Court to the incentives under Ministerial Decree 37/2018
The recent reforms addressing proceedings before the Supreme Court devote a great deal of attention to drafting techniques, since the strengthening of procedural filters, in accordance with the “nomophylaptic” function of the Supreme Court, poses certain risks of inadmissibility, including new ones. On the other hand, there is also a tendency towards promoting the use of IT and electronic systems to ensure more rapid and substantially fairer proceedings.
Inadmissibility of deeds with the Supreme Court
As a result of the reforms addressing proceedings before the Supreme Court from 2006 onwards, in an attempt to reaffirm the Supreme Court’s «nomophylaptic» function, the concept of «inadmissibility», originally associated to merely formal-and-procedural aspects (Articles 365 and 366 of the Italian Code of Civil Procedure: expiry of the deadlines for challenging, lack of interest in challenging or legitimacy to challenge) has broadened to include pretty material aspects.
In 2009, as a result of the repeal of the so-called «question of law » (Article 366 bis of the Italian Code of Civil Procedure), besides the standard cases of «procedural» or «traditional» inadmissibility, a further type of inadmissibility was introduced under Article 360 bis of the Italian Code of Civil Procedure, thus strengthening the «filtering» phenomenon.
Consequently, just by way of an example, any uselessly long-winded application (which unfortunately is often the «distorted» consequence of erroneous interpretation of the principle of self-sufficiency) now risks to be declared inadmissible, as any irrelevant objection shall be treated as failure to state reasons in breach of the statutory provisions of Article 366, paragraphs 3 and 4 of the Italian Code of Civil Procedure (Supreme Court’s judgments 20910/17 and 11260/18).
The two-recently introduced cases of inadmissibility under Article 360 bis of the Italian Code of Civil Procedure relate to a requirement that is not merely formal but rather linked to the substance of the disputed issue: such cases should more consistently be linked to merits-related groundlessness than inadmissibility.
Limiting the scope of our analysis to paragraph 1 alone of Article 360 bis of the Italian Code of Civil Procedure, it should be noted that, by judgment 7155/17, the Joint Divisions of the Supreme Court opted for strengthening the filtering mechanism, indicating merits-related inadmissibility as an alternative to procedural inadmissibility. Decision 5001/18 of the Sixth Division of the Supreme Court then clarifies the relationship between Article 366, paragraph 4, and Article 360 bis, of the Italian Code of Civil Procedure for the purpose of full compliance with the requirement for specificity of reasons for applications.
In such a context, indicators of reason specificity are:
- the indication of all the allegedly-infringed statutory provisions and examination of their prescriptive nature, in accordance with the meaning attributed to them under the Supreme Court case law;
- identification of all the rationes decidendi and comparison between the rule applied by the trial judge and the Supreme Court case law;
- if the challenged decision is in accordance with the Supreme Court case law, reasons must also mention the arguments whereupon a well-established view is challenged.
In default thereof, a reason shall be deemed «non-specific, unfit for the purpose and, therefore, inadmissible under Article 366 paragraph 4 of the Italian Code of Civil Procedure».
The novelties introduced by Ministerial Decree 37/2018
Ministerial Decree No. 37 of 8.3.2018, entitled “Rules on amendment to Decree of 10 March 2014, No. 55, concerning determination of parameters for awarding attorney fees, pursuant to Article 13, paragraph 6, of Law No. 247 of 31 December 2012“, significantly amended the discipline of attorney fee parameters, introducing incentives for the use of certain IT tools in drafting legal documents.
The key novelties of Ministerial Decree 37/2018 (which came into force on 27 April 2018) can be summarised as follows:
- judges are prevented from awarding lawyers’ fees below a specified level. Average amounts can normally be increased by up to 80% (100% for the preliminary investigation stage) and reduced by no more than 50% (70% for the preliminary investigation stage);
- introduction of a pre-established fee for lawyers acting in mediation and lawyer-assisted negotiation proceedings, to be awarded according to numerical parameters set out in an ad hoc schedule (25-bis);
- fee increase for lawyers assisting multiple clients with equal trial position, namely, by 30 (instead of 20) per cent for each client in excess of the first one, up to a maximum of ten clients, and by 10 (instead of 5) per cent for each client in excess of the first ten, up to a maximum of thirty (instead of twenty) clients;
- when additional grounds are filed in administrative proceedings, the fee payable for the preliminary stage of the proceedings shall as a rule be increased by 50 per cent;
- concerning Arbitration, the fees specified in an ad hoc schedule shall now apply to each arbitrator and no longer to the whole panel.
The most interesting novelty for the purposes here is, however, the provision for an increase in the fees of «online lawyers» under Article 4 of Ministerial Decree No. 55 of 10 March 2014, entitled «General parameters for determination of fees in court proceedings», whose newly-introduced paragraph 1 bis reads as follows:
« The fees determined in accordance with the general parameters referred to in paragraph 1 shall as a rule be further increased by 30 per cent when a deed filed electronically is drafted by using IT tools making the consultation and use of the same easier, in particular by allowing textual search within the deed and its annexes and navigation therein».