Commentary on Judgment No. 17926 of 2024: Renewal of Service of the Notice of Appeal

Judgment No. 17926 of 28 June 2024, issued by the Court of Cassation, offers important clarifications on the issue of renewing the service of the notice of appeal. In this case, the appellate judge had to deal with the consequences of incorrect instructions given during the renewal of service process. This article aims to analyse the salient points of the judgment and their impact on civil procedural law.

Context of the Judgment

The case in question involved A. P. versus A. D. and arose from an order by the Court of Appeal of Brescia, which had ordered the renewal of the service of the notice of appeal due to non-compliance with appearance deadlines. However, the instructions given by the judge proved to be incorrect, opening the way to an important legal question: can the judge declare the appeal inadmissible based on such errors?

The Ruling of the Judgment

Renewal of service of the notice of appeal ordered by the judge - Erroneous instructions - Declaration of inadmissibility of the renewed act - Exclusion - Consequences - Art. 111 of the Constitution. The appellate judge who, following non-compliance with appearance deadlines, has ordered the renewal of the service of the appeal with instructions that proved to be erroneous, cannot declare the appeal inadmissible, but must revoke the erroneously issued order and, in compliance with the principle of due process and to protect the legitimate expectation of the appellant, must grant the latter a new deadline for service, as the appellant cannot be prejudiced by the invalidity of an act determined by compliance with a judicial measure, obviously without prejudice to the appearance of the respondent, which entails the validation of the act that deviates from the legal paradigm for the achievement of its purpose, pursuant to Art. 156, paragraph 3, of the Code of Civil Procedure.

Implications of the Judgment

The Court established that the revocation of the erroneously issued order is necessary to ensure compliance with the principle of due process, enshrined in Article 111 of the Constitution. This principle is essential to protect the parties' right to defence and to ensure that they are not prejudiced by procedural errors. Furthermore, the judgment recognises that the appellant's legitimate expectation must be protected by granting them a new deadline for service.

The implications of this judgment are significant for legal professionals, as it establishes an important precedent regarding the management of service and the responsibility of the appellate judge. It is crucial for lawyers to pay attention to procedural details, as errors of this type can influence the outcome of cases.

• Recognition of the right to renewal of service even in case of erroneous instructions.
• Legitimate expectation of the appellant as a core principle to be protected.
• Revocation of erroneous orders to ensure due process.

Conclusions

In conclusion, judgment No. 17926 of 2024 represents a significant step forward in protecting the rights of parties in civil proceedings. It underscores the need to ensure that procedural errors do not compromise the right to defence and the principle of due process. Lawyers are called upon to pay particular attention to deadlines and methods of service to prevent errors from having negative consequences on the rights of their clients.