English Pragmatism and Italian Virtue
| DOI | 10.1177/1023263X1402100303 |
| Author | Matteo Vricella,Vito Breda |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Article |
428 21 MJ 3 (2014)
ENGLISH PRAGMATISM AND ITALIAN VIRTUE
A Comparative Analysis of the Regime of Illegally
Obtained Evidence in Civil Law Proceedings
between Italy and England
V B* and M V**
ABSTRACT
is article provides a comparative analysis of the Italian and the English regimes of
improperly or illegally obtained evidence (herea er IOE) in civil law cases. We will use
the term regime to indicate the system of rules and juridical practices that regulate IOE.
In the past decade, the Italian and the Engli sh regimes of IOE have been adapting to
new institutional and economic demands. Until recently, the Italian civil justice system
mechanically assumed that IOE was inadmissible. In contrast to the Italian regime, IOE
was normally allowed in English cour ts. However, a series of court decisions has changed
the assumption of admissibility of IOE. In England and Wales (the two nations share the
same civil procedure system), the introduction of the Civil Procedure Rules 1998 (herea er
CPR) and the Human Rights Act 1998 (herea er HRA) has instead imposed a duty
to exclude an IOE that has been obtained as a result of an outrageous violation of the
European Convention on Human Rights. is article contends that the two regimes of
IOE are moving into an untested terrain, albeit from di erent starting points, and that a
comparative analysis might help clarify the rel ation between the admissibility of IOE that
triggers protected rights, such as Article 8 ECHR, and the functioning of the civil justice
system. e article is divided in three section s preceded by an introduction and followed
by a conclusion. e rst two sections discu ss the English and Welsh as well as the Italian
regimes of IOE. e third section focuses on how the two legal systems seek to strike a
balance between the violation of r ights and the compelling demand for e cient civil trials.
Keywords: Engla nd & Wales; i llegally obtained evidence; Ita ly
* Lecturer in Law at University of Southern Queensland, MacCormick Fellow at the University of
Edinburg h, and Visiting Professor i n Comparative Law at the Unive rsidad de Deusto.
** Research Assi stant at the University of S outhern Queensla nd, Praticante Avvo cato, Ordine Degl i
Avvo cat i di B resc ia.
English Pra gmatism and Ital ian Virtue
21 MJ 3 (2014) 429
§1. IN TROD UC TION
According to the Organiz ation for Economic Co-operation and Development (OECD),
Italy experiences a hig h number in delays of civil cour t proceedings compared to
other countries and , as a corollary, a high numb er of pending cases exi st.1 However,
having a precise and objective representat ion of the relevant facts, wit hin the limit of
reasonableness ,2 is essential to ensu re the quality of judicial dec isions in both Italian and
English civi l cases.
In relation to the regime of IOE, the Ita lian and Engl ish judges adopted di erent
procedural stances . In Italy, submitting IOE in court is generally perceived a s antithetical
to the deontological fu nctions of a judicial system.3 For instance , the Court of Appeal of
Milan, when faced w ith a decision on the admissibi lity of a stolen document, expl icitly
refused to consider the lega l e ects of ill icitly obtained ev idence.4 e 1934 Cou rt of
Appeal decision to lim it illicit activ ities of the parties by ref using to consider the e ect
of such acti vities could be jus ti ed by an attempt to uphold the rule of law during a dark
period of Italian hi story. Yet, the rigid application of the refusa l to permit IOE, which
might be intended as one of the manifest ations of an attempt to protect civil values, has
an impact on the present e ciency and, perhaps, the esteem of the Italia n civil courts.
For instance, the insi stence on excluding IOE without evaluation has led rese archers to
label some civil procedures experts as verofobes.5 e term, which Michele Taru o takes
from Goldman’s Knowledge in the Social World,6 suggests that a large section of Italia n
doctrine (and of the judicia ry) mechanical ly upholds principles, such as the doc trine
forcing courts to accept only lega lly obtained ev idence, hindering the f unctioning of
a civil justice sy stem (which aspires to be accurate and e cient). e reason for such
insistence is a matter of speculation, yet it is certain that it cannot be explained, as the
Court of Appeal of Mi lan could have in 1934, by a noble attempt to protect indiv idual
rights agains t a fascist regime.
In direct contrast with the Italian regime of IOE, English courts normally consider
any relevant IOE admissible.7 Again, it is di cult to point out the contextual reasons
1 ‘In 2010 the average lengt h of civil proceed ings in r st instance in t he OECD area was arou nd 240 days,
but only 107 days in Japan, t he best performer. About 420 d ays were required in Slovenia a nd Portugal,
and 564 days in Italy. e average length of a c ivil dispute going throug h all three instance s was 788
days, rangi ng from 368 days in Swit zerland to almost 8 yea rs in Italy’. (Emphasis added), OECD, ‘What
makes civi l justice e ective?’, OECD Economics Depar tment Policy Notes No. 18 (2013), p.2.
2 See N. MacCorm ick, ‘Reasonableness and Objec tivity’, 74 Notre Dame Law Rev iew (1998), p.1575.
3 M. Taru o, ‘La Verità nel Pro cesso’, 66 Rivista Trimestrale di Di ritto e Procedura Civile (2 012), p. 1117–
1135.
4 Court of Appea l, Tribunal of Milan Dec ision 5/3/1934, 63 II Rivista di Dirit to Processuale Civ ile (193 4).
5 M. Taru o, 66 Rivista Trimestrale di D iritto e Procedura Civi le (2012), p.1117.
6 A.I. Goldman, Knowledge in a Social World (Oxford Universit y Press, 1999).
7 e li ne of authority is established i n: John Anthony Helliwell and ors. v. Terry D. Pig gott-Sims [19 80]
FSR 356, p.356.
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