Product Liability 2009 - Arnold & Porter LLP

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7.4 Is funding allowed through conditional or contingency fees
and, if so, on what conditions?
Contingency or conditional fees are, since 2006, allowed by the
Italian bar rules, provided that the relevant agreement between the
lawyer and the client is done in writing.
7.5 Is third party funding of claims permitted and, if so, on
what basis may funding be provided?
Third party funding of claims is not used in Italy as a means of
funding.
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in Italy.
The Parliament is currently discussing a wide reform of the Code of
Civil Procedure, which - if approved - will affect the procedural
system applicable also to product liability claims. The main
proposed amendments are, inter alia:
(i) Legal fees and disbursements, The Judge may - even ex officio -
order the losing party to pay not only the relevant legal fees and
disbursements, but also an additional amount, which is assessed on
equitable grounds, from a minimum of Euro 1,000 to a maximum
of Euro 20,000.
(ii) Written fact witness depositions. As noted in the answer to
question 4.9 above, under the procedural rules currently in force,
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witness can only be deposed orally before the Judge. According to
the proposed draft, the parties will be allowed to file written witness
depositions on questions previously submitted to and approved by
the Court. The Judge, upon examination of the written depositions
can always call the witness for oral examination.
(iii) Grounds for appeal before the Supreme Court. According to
the proposed draft bill, a Court of Appeal decision could be
challenged before the Supreme Court on the basis of the following
grounds:
a) The appealed decision is not consistent with previous caselaw.
b) The appeal relates to issues on which the Supreme Court
wishes to confirm or amend its approach or the issue is
disputed.
c) There is a prima facie grounded claim for violation of the
right to a fair trial.
The above grounds stem from (and are reduced in number in respect
of) the ones currently provided by the Code of Civil Procedure.
As regards case-law trends, the recent decisions by the Joint
Divisions of the Supreme Court (see the answer to question 6.2
above) have set important guidelines on the category of nonpatrimonial
damage and have clarified that non-patrimonial damage
shall be adequately proved by the claimant both as regards its
existence and its amount. The decisions by the Supreme Court have
already had (and will continue to have) an impact on product
liability claims in respect of the damage award.
Acknowledgment
The authors would like to acknowledge the assistance of their
colleague, Daniele La Cognata, in the preparation of this chapter.
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