It has been a while since the Supreme Court has established that the appeal judgment must indeed is a case of mandatory joinder, which means that all the parties who participated to the judgement of first instance must take part in the appeal judgment whenever there is a concrete risk of conflicting rulings.
When the Court is going to issue a ruling which concerns multiple parties, either for substantial or for procedural reasons, the participation of all said parties to the judgment becomes essential. In fact, if one of the parties is absent, the judge orders that it is brought to trial within a fixed deadline (art. 102 of the Italian Code of Civil Procedure).
Such regime, prescribed by the law raises a question: if the ruling issued by the court of first instance is notified only to some of the parties of the judgment, either by choice or by mistake, can the Court of Appeals issue the ruling anyways? Or should it be considered a case of mandatory joinder and consequently require that all the parties of the judgment of first instance are brought to trial?On the matter, art. 331 of the Italian Code of Civil Procedure dictates that if the ruling, which was issued at the end of a judgment concerning multiple parties, must be challenged with regard to all said parties. Otherwise the Court of Appeals shall order that the absent parties be brought to trial; the Court also establishes a time limit their subpoena and, if necessary, schedules an hearing for their appearance.The Italian Supreme Court has addressed the topic and has declared that art. 331 of the Italia Code of Civil Procedure shall apply not only to the cases in which the joinder was mandatory even in the first instance by reasons of substantial law (such as joint ownership of the disputed right), but also to the cases of so called “procedural mandatory joinder”. The latter occur whenever the participation of multiple parties to the judgment of first instance must be assured in the Appeal judgment as well, in order to avoid possible conflicting rulings regarding the same issue and among the same parties (Italian Court of Cassation, court order no. 11044 of April the 27th 2021).
As a matter of fact, the Supreme Court has argued that, lacking the completion of the adversarial hearing during the judgment of appeal, the latter is to be regarded as entirely invalid. The same fate is reserved to the ruling issued by the Court of Appeals in such circumstances, whose invalidity can even be detected ex officio during the judgment before the Supreme Court (Italian Court of Cassation, court order no. 11044 of March the 29th 2019).
It also should be noted that, in the field of challenging of civil awards, the adversarial hearing completion is mandatory, according to art. 331 of the Italian Code of Civil Procedure, not only in case of inseparable claims, but also when the claims, while being separable, must solve issues which are logically dependent from each other or they share a common factual premise (so called “interdependent claims), when those claims have been previously decided in a single judgment. Such regime is imposed with the intention of avoiding that future procedural issues may lead to definitive conflicting rulings (Italian Court of Cassation, ruling no. 27485 of December the 30th 2016).
A different question, concerning the same topic, is the following: if the act of appeal is notified only to some of the parties who participated to the first instance judgment, does it produce its effects with regard to the parties who weren't notified as well? The question is not irrelevant since the previous ruling may even become definitive for those parties who weren't subpoenaed for the appeal judgement.
According to various Supreme Court decisions, if the act of appeal is not notified to one of the mandatory joinder parties, its admissibility and promptness are not affected, so much so that it prevents the ruling of first instance to become definitive, even for the party who was not notified with the act of appeal. However, completion of the adversarial hearing shall be ordered by the judge. Its omission leads to the invalidity of the judgment, which can also be detected ex officio during the higher grades of judgement, even when the mandatory joinder party was not included in the act of challenge (Italian Court of Cassation, ruling no. 19910 of July the 27th 2018, in Giust. Civ. Mass. 2018 – previously in accordance also Italian Court of Cassation, ruling no. 18364 of July the 31st 2013, in Giust. Civ. Mass. 2013 – also Court of Cassation, ruling no. 3071 of February the 8th 2011 – and Court of Cassation, ruling no. 9977 of April the 16th 2008).
In light of the above it can be concluded that the notification of the act of appeal, made only to some of the parties of the previous judgment, does nevertheless prevent the first instance ruling from becoming definitive for all of the mandatory joinders, even those who were not notified with the act of appeal and have not participated to the second instance judgment. Nonetheless, the Court of Appeals has the duty to order the completion of the adversarial hearing, in order to avoid the invalidity of its own future ruling.
Originally Published by 23 June 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
