Lawyer Andrea Di Pietro comments on an innovative judgment by which the Cassation Court has adopted the concept of “punitive damages” and the abuse of the process coming from the United States legal tradition.
When discussing reckless lawsuits, lawyers often observe that the Italian legal system already has legal instruments suitable for combatting the phenomenon, although they are rarely applied.
In fact, both in civil law, with article 96 of the code of procedure, and in criminal proceedings, with articles 427 and 542 of the relative code of procedure, it is possible to counter the phenomenon of abuse of the right to act in court. The abuse of the process, especially in terms of defamation in the press, produces severe limitations on the freedom of information and becomes an obstacle to the journalism profession. But something new is beginning to appear.
The Third Civil Section of the Supreme Court of Cassation on the 11th October 2018, with Judgment no. 25177, has taken a step forward towards the definitive application of the so-called “punitive damages”. An innovative principle, which is progressively becoming established in jurisprudence, after a very long period of mistrust and uncertainty. The founding principles of the concept of punitive damage have been borrowed from American experience and legal tradition. In substance, what appears relevant is the “function” of compensation for damage, which, in addition to its restorative nature, may also have a penalizing interpretation. This means that, unlike traditional damage, which must always be proven, “punitive damage” is freed from the burden of proving the damage suffered. The judge, in this case, decides on an equitable basis and can do so also ex officio, as happened in the case submitted to the attention of the Supreme Court.
What changes, therefore, is that thanks to the recent admissibility of punitive damages in the Italian legal system, the judges will be able to apply more easily Article 96 c.p.p. and therefore put a brake upon the reckless disputes and the phenomenon of “abuse of the trial process”, that is the unfounded appeal to the provision, while guaranteed by Article 24 of the Constitution, to take legal action asking for pecuniary and non-pecuniary damages.
The judges have begun to put on the scales of justice two constitutional principles: the right to defence, protected by Article 24, and the right to a fair trial, protected by Article 111 (“Jurisdiction is implemented through the due process regulated by law … The law ensures its reasonable duration “). Here is the crux of the question: the abuse of the right to act in court clogs the administration of justice to the point that it does not make the principle of due process alive and effective which it would have if it has a “reasonable duration”.