Technical Accounting Consulting and Consent of the Parties: Commentary on Ordinance No. 16012 of 2024

In a recent intervention, Ordinance No. 16012 of 2024 from the Court of Cassation provided important clarifications regarding technical accounting consulting and the consent of the involved parties. This issue is crucial for understanding the dynamics of civil proceedings, particularly in disputes that require an in-depth analysis of accounting matters. The Court reiterated the importance of clear and unequivocal consent from the parties regarding the acquisition of documents during expert operations.

The Regulatory and Jurisprudential Context

Technical accounting consulting is regulated by Article 198 of the Code of Civil Procedure, which establishes that the court-appointed expert can acquire relevant documents for their analysis. However, the recent ordinance highlighted that the acquisition of documents not previously produced by the parties always requires consent. This consent can be expressed, implied, or inferred from concrete behaviors, but cannot simply be derived from the conduct of the party consultants, who do not have the power to bind the parties on issues other than those that are technical.

Technical accounting consulting - Consent of the parties - Methods - Behavior of party consultants - Irrelevance. In terms of technical accounting consulting under Article 198 of the Code of Civil Procedure, the acquisition by the court-appointed expert of documents not previously produced by the parties, possible even if aimed at proving main facts and not merely accessory ones, requires the expressed, implied, or inferred consent of the parties themselves, being insufficient any consent that may be inferred from the conduct of their consultants during the expert operations, as the latter lack the power to bind the former on issues other than those related to the technical investigations carried out by the court-appointed expert. (In this case, the Supreme Court annulled and referred back the merits decision, which had erroneously declared the nullity of the technical consulting, although the acquisition of the loan agreement by the consultant had been consented to by the parties as the document had been transmitted by the legal representative of the opposing party to the normally obligated party and used, in the contradiction of the parties, during the expert operations).

Practical Implications of the Decision

This ordinance has significant implications for parties involved in disputes requiring technical consulting. It is essential that the parties are 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 consulting, as highlighted in the Court's ruling. In particular, the error of the Court of Appeal of Milan, which had declared the technical consulting null, was corrected by the Cassation, emphasizing that consent can also arise from documents transmitted by lawyers.

  • Importance of explicit consent in technical consultations
  • Risks related to the acquisition of documents without consent
  • Active role of the parties in the expert process

Conclusions

In conclusion, Ordinance No. 16012 of 2024 represents an important step forward in clarifying the methods of acquiring documentation in the field of technical accounting consulting. 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 the parties and the consultants are essential to ensure the effectiveness of the expert operations.

Bianucci Law Firm