Limits of the Technical Consultant (CTU): The Court of Cassation on Fact-Finding and Relative Nullity (Order 16182/2025)

In the landscape of Italian civil procedural law, the figure of the Court-Appointed Technical Consultant (CTU) plays a fundamental role. As an auxiliary to the judge, the CTU is called upon to provide the technical clarifications necessary for the resolution of disputes. However, their work is not without limits, and any violation thereof can have significant repercussions on the validity of the proceedings. The Court of Cassation, with its recent Order No. 16182 of June 16, 2025 (Rv. 675446-02), has provided crucial clarification regarding the nature of nullity arising from the consultant exceeding their powers, distinguishing between relative and absolute nullity. This ruling, with Dr. Stefania Tassone as rapporteur and author, is an essential reference point for understanding the delicate balance between the need for technical assessment and the guarantee of the adversarial principle.

The Role of the CTU and the Boundaries of Their Actions

The Court-Appointed Technical Consultant, pursuant to Articles 61 et seq. of the Code of Civil Procedure, is tasked with supporting the judge with their specific expertise. Their activity is circumscribed by the questions formulated by the magistrate and, above all, by the principal facts alleged by the parties. This means that the CTU cannot become a substitute for the parties in alleging facts or identifying new evidence that has not been duly introduced into the proceedings. This principle is a corollary of the broader principle of disposition, according to which the parties bear the burden of alleging the facts forming the basis of their claims and defenses (Art. 112 c.p.c.).

Jurisprudence has always ensured that the CTU does not encroach upon evidentiary activities reserved for the parties, nor that they ascertain facts other than those principal facts alleged. The judgment under review addresses precisely this delicate aspect, clarifying the procedural consequences of such an overreach.

The Ruling of the Court of Cassation: Relative Nullity and the Adversarial Principle

In matters of court-appointed technical consultancy, the ascertainment of facts other than the principal facts alleged by the parties as the basis for the claim or defenses, and except, as regards the latter, for principal facts that may be ascertained ex officio, or the acquisition within the aforementioned limits of documents that the judge-appointed consultant ascertains or acquires in order to respond to the questions submitted to them in violation of the parties' adversarial principle, constitutes a source of relative nullity that may be raised at the initiative of a party in their first defense or motion subsequent to the vitiated act or to the knowledge thereof.

This ruling is of paramount importance. The Supreme Court establishes that if the CTU ascertains facts that go beyond the principal facts forming the basis of the claim or defenses (unless they are facts that can be ascertained ex officio), or acquires documents in violation of the parties' adversarial principle, such conduct generates a relative nullity. What does this mean in practical terms? A relative nullity, unlike an absolute nullity (Art. 156 c.p.c.), cannot be raised ex officio by the judge at any stage of the proceedings. Instead, it must be objected to by the interested party, under penalty of waiver, in the first available defense or motion subsequent to the vitiated act or to the knowledge thereof (Art. 157 c.p.c.).

This distinction is fundamental because it imposes a duty of diligence and immediate reaction on the parties. The violation of the adversarial principle (Art. 101 c.p.c.), a cornerstone of our procedural system, is serious, but if not promptly objected to, the nullity is cured. The Court of Cassation, in line with previous rulings (such as No. 3086 of 2022 by the United Sections), therefore reiterates the need for prompt action by the aggrieved party to prevent the defect from becoming consolidated.

The Specific Case and Practical Implications

The case that led to Order 16182/2025 concerned a claim for agricultural preemption, an institution that allows certain individuals to step into the purchase of a rural property in case of violation of the right of first refusal. In this specific case, the Court of Appeal of Caltanissetta had erroneously classified as "absolute nullity" the undue extension of the expert's mandate to ascertain a principal fact – the non-alienation of the rural properties in the preceding two years – which should have been alleged by the parties. The Court of Cassation, presided over by Judge Raffaele Gaetano Antonio Frasca, quashed and remanded the appealed judgment, correcting this approach.

This ruling has important practical implications for lawyers and legal professionals:

• Constant Vigilance: It is essential to carefully monitor the CTU's work, verifying that they do not exceed the scope of the questions and that they do not acquire documents outside the adversarial process.
• Timely Reaction: Should an irregularity occur, the objection of nullity must be raised at the earliest opportunity, otherwise the defect will be deemed cured.
• Knowledge of Jurisprudence: The judgment reiterates a principle already consolidated by the United Sections, emphasizing the importance of solid knowledge of case law on procedural matters.

The principle affirmed by the Court of Cassation serves to balance the need for procedural efficiency with the protection of the right to defense and the adversarial principle. This is not a mere formality, but a fundamental safeguard for the correctness of the proceedings.

Conclusions

Order 16182 of 2025 by the Court of Cassation represents an important step in consolidating the principles governing court-appointed technical consultancy. By reiterating the nature of relative nullity for CTU oversteps in ascertaining unalleged facts or in acquiring evidence in violation of the adversarial principle, the Supreme Court reaffirms the importance of the principle of disposition and the duty of the parties to vigilantly and promptly react. For legal practitioners, this means not only knowing the limits imposed on the CTU but also being ready to intervene with due promptness to protect the interests of their clients and ensure the regularity of civil proceedings.