If the lawyer wants to take legal action against a former client to obtain payment of their professional fees must first formulate the invitation to the signing of agreement negotiation assisted if the subject matter does not exceed the amount of fifty thousand euro and counterparty is a company or, in any case, a person does not qualify as a consumer. The reason for exclusion of the condition of admissibility of art. 3, paragraph seven, dl 132 of 2014, only applies to disputes in which it is not objectively necessary technical defense and not those in which the party has the opportunity to defend themselves in their pursuant to art. 86 cpc
by The Legal Daily
It is one of the first rulings of interpretation about the recent legislation on assisted negotiation and its condition of admissibility. The ruling appears of particular interest especially in so far as it excludes the action brought in just under Article. 86 CPC falls within the dispute as “a party may represent himself in court” and, therefore, excluded from the application of the condition of admissibility in accordance with the seventh paragraph of art. 3.
The fact
In case a lawyer promotes a summary procedure for cognition ex art. 702-bis of the CPC against the company’s former client, for an order for the latter to pay professional fees for their work. At the hearing, however, it is argued (it is unknown whether ex officio or upon request of a party) failure to observe the condition of admissibility laid down by Article. 3 of Decree 132 of 2014.
The question
The question relates to the payment of professional fees brought in by their defense against the former client. It does not specify either the exact amount or the nature of the compensation requested; However, the text of the measure is clear that the question was less than the sum of fifty thousand euro even considering any default interest.
The decision of the Court
The Court of Verona, it is unknown whether ex officio or on application, detects and failure of the process of assisted negotiation and, consequently, believing that in this case the prior experiment of the same constitutes a condition of admissibility, assigns deadline for communication invitation to the conclusion of agreements of assisted negotiation.
The Court’s decision is certainly unobjectionable. According to the legislative data does not seem possible to doubt that the condition of admissibility provided for in Article. 4 of Decree 132 of 2014 also applies to disputes concerning the payment of professional fees of less than fifty thousand euro if proposals to persons other than consumers, just as in the present case. As correctly found by the Court, in fact, the company can not be qualified as a consumer and certainly the exclusion of the application of the condition of admissibility for disputes in which a party can sue and be sued in its own concerns only disputes in which “objectively” You need not be technical defense and not to those where “subjectively” a party can defend themselves on their own (as in the case in which the lawyer is acting in the dual part of and defender in accordance with art. 86 CCP). Moreover, the exclusion provided by the seventh paragraph of art. 3 of Decree 132 of 2014 is clearly functional to avoid restrictions on access to justice in cases where the party, without specific technical knowledge (and thus not able to be fully aware of the existence of conditions of admissibility), can still act own; certainly there are no similar requirements where the lawyer is acting on his own.
One could argue that if the limit of fifty thousand euro must be assessed only with reference to the total capital required, or even considering legal interest or late payment. In the present case, the Court seems to consider also the default interest, but the statement is more of a mere obiter dictum , since in this case the question was less than the limit, even if increased by such interest.
Post the correctness of the decision and the clarity of the legislative data on the point, however, denied the dubious value of such a provision, both in general, in the configuration of a condition of admissibility, and specifically, in its application to disputes relating to professional fees .
It is, moreover, an assessment of dubious opportunities covering the entire discipline of assisted negotiation introduced by the Italian legislature, especially in comparison homologous French Institute (the procédure participative introduced in the Articles. 2062 to 2068 of the Civil Code from French Law 2010-1609 of 22 December 2010), the use of which, in light of the latest reforms of the décret 2015-282 of 11 March 2015, is based solely on the free choice of the parties. Even more so are the very strong doubts about the usefulness of the actual condition of admissibility especially in relation to disputes (such as those relating to professional fees), in which the settlement of compensation is linked to specific parameters determined by ministerial decrees.
The decision in brief
The condition of admissibility of art. 3 of Decree 132 of 2014, converted by Law. 162 of 2014 applies to the questions concerning the order for payment of professional fees where amounts of less than fifty thousand euro and proposals to parties that do not qualify as consumers, even when the party can represent himself in court pursuant to Art. 86 cpc.
Outcome of the application:
Set the deadline for sending the invitation to the signing of an agreement of assisted negotiation in art. 4 of Decree 132 of 2014 and refer the case to a hearing after the expiry of the deadline for conducting the negotiation itself
Case law:
Nobody
Further reading:
Articles. 3:04 dl 132 of 2014, converted by Law. 164 of 2014
It is one of the first rulings of interpretation about the recent legislation on assisted negotiation and its condition of admissibility. The ruling appears of particular interest especially in so far as it excludes the action brought in just under Article. 86 CPC falls within the dispute as “a party may represent himself in court” and, therefore, excluded from the application of the condition of admissibility in accordance with the seventh paragraph of art. 3.
The fact
In case a lawyer promotes a summary procedure for cognition ex art. 702-bis of the CPC against the company’s former client, for an order for the latter to pay professional fees for their work. At the hearing, however, it is argued (it is unknown whether ex officio or upon request of a party) failure to observe the condition of admissibility laid down by Article. 3 of Decree 132 of 2014.
The question
The question relates to the payment of professional fees brought in by their defense against the former client. It does not specify either the exact amount or the nature of the compensation requested; However, the text of the measure is clear that the question was less than the sum of fifty thousand euro even considering any default interest.
The decision of the Court
The Court of Verona, it is unknown whether ex officio or on application, detects and failure of the process of assisted negotiation and, consequently, believing that in this case the prior experiment of the same constitutes a condition of admissibility, assigns deadline for communication invitation to the conclusion of agreements of assisted negotiation.
The Court’s decision is certainly unobjectionable. According to the legislative data does not seem possible to doubt that the condition of admissibility provided for in Article. 4 of Decree 132 of 2014 also applies to disputes concerning the payment of professional fees of less than fifty thousand euro if proposals to persons other than consumers, just as in the present case. As correctly found by the Court, in fact, the company can not be qualified as a consumer and certainly the exclusion of the application of the condition of admissibility for disputes in which a party can sue and be sued in its own concerns only disputes in which “objectively” You need not be technical defense and not to those where “subjectively” a party can defend themselves on their own (as in the case in which the lawyer is acting in the dual part of and defender in accordance with art. 86 CCP). Moreover, the exclusion provided by the seventh paragraph of art. 3 of Decree 132 of 2014 is clearly functional to avoid restrictions on access to justice in cases where the party, without specific technical knowledge (and thus not able to be fully aware of the existence of conditions of admissibility), can still act own; certainly there are no similar requirements where the lawyer is acting on his own.
One could argue that if the limit of fifty thousand euro must be assessed only with reference to the total capital required, or even considering legal interest or late payment. In the present case, the Court seems to consider also the default interest, but the statement is more of a mere obiter dictum , since in this case the question was less than the limit, even if increased by such interest.
Post the correctness of the decision and the clarity of the legislative data on the point, however, denied the dubious value of such a provision, both in general, in the configuration of a condition of admissibility, and specifically, in its application to disputes relating to professional fees .
It is, moreover, an assessment of dubious opportunities covering the entire discipline of assisted negotiation introduced by the Italian legislature, especially in comparison homologous French Institute (the procédure participative introduced in the Articles. 2062 to 2068 of the Civil Codefrom French Law 2010-1609 of 22 December 2010), the use of which, in light of the latest reforms of the décret 2015-282 of 11 March 2015, is based solely on the free choice of the parties. Even more so are the very strong doubts about the usefulness of the actual condition of admissibility especially in relation to disputes (such as those relating to professional fees), in which the settlement of compensation is linked to specific parameters determined by ministerial decrees.
The decision in brief
The condition of admissibility of art. 3 of Decree 132 of 2014, converted by Law. 162 of 2014 applies to the questions concerning the order for payment of professional fees where amounts of less than fifty thousand euro and proposals to parties that do not qualify as consumers, even when the party can represent himself in court pursuant to Art. 86 cpc.
Outcome of the application:
Set the deadline for sending the invitation to the signing of an agreement of assisted negotiation in art. 4 of Decree 132 of 2014 and refer the case to a hearing after the expiry of the deadline for conducting the negotiation itself
Case law:
Nobody
Further reading:
Articles. 3:04 dl 132 of 2014, converted by Law. 164 of 2014