No to the condemnation of the costs for the acceptance of the application to a reduced extent


by Francesco Machina Grifeo

The United Civil Sections of the Cassation, sentence n. 32061 filed today, shed light on the regime of court costs

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The United Civil Sections of the Cassation, sentence n. 32061 filed todayclarify the regime of litigation expenses answering negatively to the question whether «the interpretation of art. 92 cpc according to which, in the case of a significant gap between petitum And decisumthe actor partially victorious may be ordered to reimburse a portion of the litigation costs in favor of the opposing party”. The issue concerned a writ of payment that was disputed because it contained the wrong amount.

The Supreme Court after recalling i d two opposing orientations (and also an intermediate third party) takes a position in favor of the direction that circumscribes the case of the mutual succumb to the hypothesis of a plurality of opposing questions formulated in the same process between the same parties (or of a single question divided into several chapters, of which only some have been accepted), excluding it instead in the case in which a request divided into a single chapter has been proposed. In this hypothesis, in fact, the acceptance, even to a significantly reduced extent, does not allow the condemnation of the party who is in any case victorious to pay the costs of the proceedings, being able to justify, at the most, the total or partial compensation.

The judges of legitimacy therefore affirmed the following principle of law on the subject of legal costs: «Acceptance to a reduced extenteven sensitive, of a question articulated in a single chapter does not give rise to mutual succumbingconfigurable exclusively in the presence of a plurality of opposing requests formulated in the same process between the same parties or in the event of partial acceptance of a single request divided into several items, and does not allow then the conviction of the victorious party al payment of the expenses proceedings in favor of the losing party, but can only justify the compensation total or partial, in the presence of the other prerequisites provided for by art. 92, second paragraph, of the code proc. civ. ».

This orientation, continues the decision, in addition to being more compliant with the discipline dictated by the code of procedure, which is oriented towards a limitation of the discretion of the judge in the regulation of procedural expenses, “proposes a rule of easy and prompt application, suitable for guaranteeing the full deployment of the right to judicial protection, while avoiding, at the same time, operational uncertainties leading to appeals limited to costs, in line with the principle of reasonable length of the process, sanctioned by the art. 111, second paragraph, of the Constitution, which imposes the preference, as far as possible, of solutions aimed at containing the stages and times of the trial”.

Which is why, he continues, we cannot agree with the contested sentence, in the part in which, relying on the extremely limited outcome of the opposition to preceptwhich had resulted in the reduction of the credit initiated for a very small amountand also highlighting the partial acceptance of the appeal proposed by the petitioners, identified in theopponent the substantially losing party, ordering it to pay the nine tenths of the legal costs, and declaring the remainder compensated.

Such a decision, concludes the sentence, does not take into account the overall outcome of the trial, “marked by the ascertainment of the validity of the disputes raised by the opponent in relation to the amount of the credit enforced with the writ of precept”, nor of the procedural behavior of the summons, who, as evidenced by the contested judgment itself, “although having acknowledged having committed an error in the indication of the sum due, they had never expressly waived the higher amount requested, thus making it necessary to bring the legal claim”.

No to the condemnation of the costs for the acceptance of the application to a reduced extent