The Court of Milano, Italy clarified that in a civil action the parties have the right to decide which facts to bring to the court’s attention in order to prove their claims and how they want to prove them. From the so called “principio dispositivo” (i.e., right to bring or not to bring, at one’s discretion, a claim in court to protect a right), it ensues that the parties can choose which facts they want to disclose.

In this case, Plaintiff (former wife) objected to the former husband’s transfer of some shares, which were titled in the name of Luxembourg companies but allegedly were 50% and 50% owned by her and her husband (Defendant). Plaintiff sought 1) an injunction to seize the shares that had been wrongfully transferred; 2) specific performance, i.e. a judgment that would re-title the shares to the original owner.

The Court found that Plaintiff had pointed out neither the relevant facts nor the specific causes of action underlying her claims. Indeed, Plaintiff claimed that there was in place one of the following: (i) a fiduciary agreement between the shareholders and the company issuing the shares; (ii) a fiduciary relationship between Plaintiff and Defendant on the management of the shares; (iii) a proxy to the Defendant to manage the shares also in the Plaintiff’s interest; or (iv) a proxy to manage the assets once owned by the spouses jointly.

The court highlighted that the parties to a dispute must prove the facts that give rise to the right they want to vindicate in court. While they could allege alternative legal interpretations of the facts, they could not ask the judge to choose between alternative sets of the facts on which the claim could be grounded, as Plaintiff did here. The judge can interpret the law but she cannot decide which claim to adjudicate or on which set of facts when a party brings several claims, without choosing a version of the facts and specifying the causes of action underlying those facts. Read the full decision (Tribunale di Milano April 27, 2015) –in Italian.

The principle expressed in the decision (principio dispositivo) is nothing new, however, it is an important reminder of a fact: being a plaintiff in Italy may be very difficult.

If you are thinking of bringing an action in Italy, be mindful of the following: 1) you will have to plead only one set of facts. You will not allowed to plead facts in the alternative; 2) don’t count on forcing the other side to disclose the missing pieces of the puzzle. In Italy there is no discovery (neither pretrial discovery or post trial discovery for that matter), i.e., there is no mechanism to compel “an opponent or a third-party to provide information in civil cases … and parties are obligated to produce only those documents to which they refer in their pleadings. If one party wishes to obtain access to specific documents held by another party, the party must ask the court to order the other party to disclose these specific documents. The order to produce evidence is a very limited device: the request must indicate precisely the document or documents sought, the reasons why the material is necessary to the litigation, and the location of the document or documents.” See more on this in Nathan M. Crystal & Francesca Giannoni-Crystal, Understanding Akzo Nobel: A Comparison of the Status of In-House Counsel, the Scope of the Attorney-Client Privilege, and Discovery in the U.S. and Europe, Global Jurist: Vol. 11: Iss. 1 (Topics) (2011), Article 1

The consequence is that to bring litigation in Italy, you must have – from the start – a very clear idea of how the defendant caused you a damage and you must have full evidence to support it. Hard time for plaintiffs in Italy …

For more information, Francesca Giannoni-Crystal