Out-of-court legal costs constitute “emerging damage”, but must be proven in court
The Supreme Court has established that those who have incurred out-of-court legal costs must prove that they have been paid in court
An increasingly topical issue in the Italian judicial system is that of the settlement of court costs by the judge.
The determination and quantification of expenses, in fact, are at the discretion of the judge and very often lead to the appeal of the provision by one of the parties (or both).
A marginal issue, but of the same genus, is that relating to the settlement of out-of-court expenses, together with the judicial ones: that is, the expenses incurred by the party, in favor of his lawyer, in the phase preceding the judicial dispute.
In fact, jurisprudence usually does not even take into consideration the request for settlement of expenses incurred in the out-of-court phase.
The recent Supreme Court order
However, with a recent ordinance (n.15732 of May 17, 2022), the third section of the Court of Cassation intervened on the issue, formulating an important principle of law, following a dispute in which the injured party requested liquidation not only of the legal costs, but also of the expenses incurred in the out-of-court phase and recognized by the insurance company (even if not paid later).
The emergent damage nature of out-of-court legal fees
In the first place, the Court clarified that the reimbursement of out-of-court assistance expenses incurred in favor of one’s lawyer in the pre-litigation phase is of an emergent damage nature.
According to the Supreme Court, in fact, the extrajudicial activity is different from the judicial one and the settlement of the costs of the former must be evaluated in view of the presumed future outcome of the judgment.
This means that the legal costs incurred in the out-of-court phase cannot be considered an “emerging damage”, if the activity carried out by the lawyer in this phase is assessed as useless or superfluous for the resolution of the dispute, or not suitable for ensuring protection faster to their client or to avoid the judicial phase (also ruling no. 9548/2017 of the same Court in accordance with this principle).
The burden of proof of payment
Secondly, the Court has specified that, if a party intends to obtain the payment of out-of-court legal expenses (including the fees of its lawyer), it will have the burden of providing proof, in court, of the payment, attaching to its own requests the relative documentation (bank transfer slips, invoices, etc.).
The reasoning of the Court is as follows: extrajudicial costs, unlike procedural costs, constitute a component of the emerging damage and, like the latter, their existence must be demonstrated by the party who suffered it (or, in the case of expenses, which has incurred them).
The case in point
In the present case, the injurer’s insurance company had undertaken to recognize in favor of the injured party, among the various items of the draft settlement agreement, an amount by way of extrajudicial expenses incurred by the latter.
The Court recognized the usefulness of the extrajudicial activity carried out by the parties to find a settlement agreement, but decided not to pay the related costs, as they were not proven by the injured party, during the trial, with appropriate documentation.