Accounting Technical Consultancy and Parties' Consent: Commentary on Order No. 16012 of 2024

In a recent ruling, Order No. 16012 of 2024 by the Court of Cassation has provided important clarifications regarding accounting technical consultancy and the consent of the parties involved. This topic is crucial for understanding the dynamics of civil proceedings, particularly in disputes that require in-depth analysis of accounting issues. The Court reiterated the importance of clear and unequivocal consent from the parties regarding the acquisition of documents during expert proceedings.

Regulatory and Jurisprudential Context

Accounting technical consultancy is governed by Article 198 of the Code of Civil Procedure, which establishes that the court-appointed expert may acquire documents relevant to their analysis. However, the recent order highlighted that the acquisition of documents not previously produced by the parties always requires consent. This consent can be express, tacit, or inferred from concrete actions, but it cannot be simply deduced from the conduct of the parties' consultants, who do not have the power to bind the parties on matters other than technical ones.

Accounting technical consultancy - Parties' consent - Modalities - Conduct of parties' consultants - Irrelevance. In the context of accounting technical consultancy pursuant to art. 198 c.p.c., the acquisition, by the court-appointed expert, of documents not previously produced by the parties, which is possible even if aimed at proving principal rather than merely accessory facts, requires the express, tacit, or implied consent of the parties themselves. Consent inferred from the conduct of their consultants during the expert proceedings is insufficient, as the latter are not empowered to bind the former on matters other than those relating to the technical investigations carried out by the court-appointed expert. (In this case, the S.C. quashed and remanded the lower court's judgment, which had erroneously declared the nullity of the technical consultancy, even though the acquisition of the loan agreement by the expert had been consented to by the parties, as the document had been transmitted by the opposing party's lawyer to the party normally responsible and used, with the parties' adversarial participation, during the expert proceedings).

Practical Implications of the Decision

This order has significant implications for parties involved in litigation requiring technical consultancy. It is essential for parties to be aware of the need to clearly express their consent regarding the acquisition of documents. The consequences of a lack of consent can lead to the nullity of the technical consultancy, as highlighted in the Court's ruling. In particular, the error of the Court of Appeal of Milan, which had declared the technical consultancy null and void, was corrected by the Cassation Court, emphasizing that consent can also derive from documents transmitted by lawyers.

• Importance of explicit consent in technical consultancy
• Risks associated with acquiring documents without consent
• Active role of parties in the expert proceedings

Conclusions

In conclusion, Order No. 16012 of 2024 represents an important step forward in clarifying the methods for acquiring documentation in the field of accounting technical consultancy. Parties must pay attention to how they express their consent, as this can significantly influence the course of the proceedings. The ruling reminds us that transparency and clarity in communications between parties and consultants are essential to ensure the effectiveness of expert proceedings.