The unfair use of closing statements

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In the first instance of a dispute or during the appeal, when oral discussion of the evidence of a case is not permitted, the parties are entitled to file closing statements of defence in order to structure and summarise the arguments used in the dispute in the light of all the evidence presented to the Court.

Above all, closing statements are a chance to summarise the arguments and to take a final position on the outcome of the investigation (if carried out) and on the decisions of the judge, and to clarify all the claims and any eventual counterclaims.

When a case is adjourned for decision after the last hearing, the Judge must allow the parties the option to file closing statements of defence, as set out in article 190 of the Italian Code of Civil Procedure, otherwise the decision could be annulled (see Italian Supreme Court 17.02.2021, n° 4202). The filing of the final statements of defence is not mandatory. If the option to file the written statements is granted by the judge, each party can decide to exercise or not that right. The lawyer for the defence has only the burden, but not the duty, to conduct a final defensive effort.

It is not possible to file new documents with the closing statement of defence. One example of unfair use of such written statements could in fact be the filing of documents during this phase. If it happens, the judge should adjourn proceedings to let all the parties examine any such documents (see Italian Supreme Court 14.02.1995, n° 1591).

With the final statements of defence, is it not possible to request investigations or object to counter-party requests – except for those identified ex officio or those linked closely to fundamental rights – nor to modify the conclusions already reached. Even if the parties accept the extension of the arguments, new issues may not be admitted in the dispute (see Court of Nola, decision 08.01.2020).

A further unfair use of the closing statements could occur during an appeal, where the written statements are less than in the first instance. At this stage the unfair behaviour of one party could seriously compromise the right to reply of the other party (at the expense of the appellant).

It might happen, for example, that the appellant, with the unscrupulous purpose of having the “final say” on the matter, files a final statement “of style” re-proposing the same arguments used in the act of appeal and avoiding taking a position on the respondent’s defence, waiting for the statement of reply (article 190 of ICCP), and preventing the respondent from responding to the appellant’s arguments.

As everyone knows, the replies to closing statements of defence are made to contest the final written statements only, and the unfair use of such defences should be declared inadmissible.

According to one famous legal textbook on the subject “… new arguments made by the party that were not filed with the final statement or that limited themselves to repeating arguments already presented must be considered inadmissible – because they are in violation of the adversarial procedure”. (see Mandrioli-Carrata, Dir. Proc. Civ, II, XXVII ed. Giappichelli, 141).

 

 

e.storari@macchi-gangemi.com
f.montanari@macchi-gangemi.com

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