The reckless quarrel occurs when the losing party acts with bad faith or gross negligence. Compensation for damages is foreseen in favor of the counterpart. Let’s see how it works exactly.
With the aim of reducing the damage caused by the abuse of judicial means , those who act in bad faith with the awareness of being wrong are punished, with the sole purpose of lengthening the time or damaging the other party.
The art. 96 of the code of civil procedure describes precisely this situation. In the next few lines we will see what it is.
- What is the reckless quarrel?
- Compensation for reckless litigation
- Fields of application
What is the reckless quarrel?
The reckless dispute is a legal action or a defense carried out by a subject recklessly, that is, with the awareness of being wrong or only with mere dilatory intent. It is therefore a judicial dispute caused by bad faith or gross negligence of one of the parties.
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The reference standard is art. 96 cpc, which states:
If it appears that the losing party has acted or resisted in court with bad faith or gross negligence, the judge, at the request of the other party, sentences him, in addition to the costs, to compensation for damages, which liquidates, even ex officio, in the sentence [disp. att. 152].
The judge who ascertains the non-existence of the right for which a precautionary measure was carried out, or a judicial request transcribed, or a judicial mortgage registered, or forced execution started or completed, at the request of the injured party, condemns the plaintiff to compensation o the proceeding creditor, who acted without normal prudence. The liquidation of damages is made in accordance with the previous paragraph.
In any case, when ruling on costs pursuant to article 91, the judge, even ex officio, can also order the losing party to pay an equitably determined sum in favor of the counterparty.
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We can therefore underline two different configuration hypotheses:
- During the cognition process, the “reckless litigator” proposes an action in court even though he is aware of the groundlessness of his defense;
- In the execution or precautionary phase, the reckless dispute occurs in the event of the non-existence of the right on which the procedure is based
In any case, to talk about a reckless quarrel there must be the following assumptions:
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- Defeat of the opponent;
- Evidence of bad faith or of others’ fault or willful misconduct;
- Proof of damage suffered due to reckless conduct.
Compensation for reckless litigation
As we could read, in the previous paragraph, a reckless dispute commits an offense from which damage to the counterparty can result . Therefore, there may be an obligation to compensate the person who has been wronged. This happens because the latter was forced to defend himself in court for reasons without justification.
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The damages can be liquidated ex officio or in the sentence that closes the judgment . In any case, it is necessary for the person concerned to obtain compensation to demonstrate, with certain evidence, what happened.
Furthermore, with Law 103/2017, the joint and several liability of the lawyer with his client was also introduced , for reckless disputes.
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However, art. 96 cpc is not applicable to damages due to the execution of the criminal seizure.
To quantify the compensation for damage for reckless litigation , various aspects must be assessed, such as:
- Severity of the abuse;
- Impact it had on the duration of the process;
- Intensity of the subjective element.
In any case, the judge can also establish an equitable sum , or in the absence of evidence, reference is made to what was stated by the Supreme Court in judgment 20995/2011 and 3057/2009:
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notions of common experience, including the prejudice that the counterparty suffers for the sole fact of having been forced to counter an unjustified initiative of the opponent, not compensated, on a strictly economic level, by the reimbursement of the expenses and fees of the procedure itself, payable according to rates that do not concern the relationship between the party and the customer.
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Fields of application
There is no mention of reckless litigation only in reference to the ordinary judgment, but also for all the incidental procedural phases that end with a decision that provides for the sentence to be paid.
The sentence can also be given to anyone who, after having received an invitation to stipulate an agreement for assisted negotiation , refuses to adhere to the invitation or does not comply with the deadlines.
Failure to reply, in fact, within 30 days or refusal can be evaluated by the judge as a reckless dispute.
The same is true for those who illegitimately withdraw from a mediation procedure