Legal Journals

Gambazzi Looses in Milan

By Gilles Cuniberti

On 24 November 2010, the Milan Court of appeal declared enforceable in Italy the English judgments delivered in 1998 and 1999 in the Gambazzi case.

We had reported earlier on this judicial saga which has occupied the dockets of a number of higher courts of the western world in the last decade.

The European Court of Justice had asked the national court to verify the following: 

42 With regard, first, to the disclosure order, it is for the national court to examine whether, and if so to what extent, Mr Gambazzi had the opportunity to be heard as to its subject-matter and scope, before it was made. It is also for it to examine what legal remedies were available to Mr. Gambazzi, after the disclosure order was made, in order to request its amendment or revocation. In that regard, it must be established whether he had the opportunity to raise all the factual and legal issues which, in his view, could support his application and whether those issues were examined as to the merits, in full accordance with the adversarial principle, or whether on the contrary, he was able to ask only limited questions.

43 With regard to Mr Gambazzi?s failure to comply with the disclosure order, it is for the national court to ascertain whether the reasons advanced by Mr Gambazzi, in particular the fact that disclosure of the information requested would have led him to infringe the principle of protection of legal confidentiality by which he is bound as a lawyer and therefore to commit a criminal offence, could have been raised in adversarial court proceedings.

44 Concerning, second, the making of the unless order, the national court must examine whether Mr Gambazzi could avail himself of procedural guarantees which gave him a genuine possibility of challenging the adopted measure.

45 Finally, with regard to the High Court judgments in which the High Court ruled on the applicants? claims as if the defendant was in default, it is for the national court to investigate the question whether the well-foundedness of those claims was examined, at that stage or at an earlier stage, and whether Mr Gambazzi had, at that stage or at an earlier stage, the possibility of expressing his opinion on that subject and a right of appeal.

The answer of the Milan court can be summarized as follows.

Betting on Winning on Jurisdiction

Gambazzi was able to convince Swiss courts to deny recognition to the English judgments because the documents he needed to defend himself had been retained by an English firm with which he had an argument over the fees which had been charged (Pounds 1 million).

The Milan court found that Gambazzi had admitted that he had hoped to win on jurisdiction and had therefore dedicated all its resources to the jurisdictional challenge, that he eventually lost before the House of Lords. As a consequence, he had consciously decided not to invest anymore on defending on the merits, if only because by doing so, he was taking the risk of being told that he had submitted to English jurisdiction (and so he would indeed be told by the New York Court of Appeals later at the enforcement stage). The Milan court was not ready to rule that his rights to defend himself on the merits had been violated, since this was the result, the Milan Court ruled, of  an informed decision to focus on jurisdiction.

Proportionality of the Sanction

On the sanction of debarment from defending, the Milan court ruled that, although such sanction was clearly severe, and unknown from Italian civil procedure, human rights are not absolute, and can be infringed for reasons such as proper administration of justice. It then addressed the issue of whether the sanction was proportional. It held that it was, for the following reasons: 1) Gambazzi had been repeatedly in default, 2) Gambazzi had no proper reason not to comply such as violating professional secrecy or foreign (i.e. Swiss) criminal law, and 3) Gambazzi knew about the sanction.

Many thanks to Remo Caponi for the tip-off

Related posts:

1. ECJ Judgment in Gambazzi The European Court of Justice (ECJ) has delivered today its...
2. AG Opinion in Gambazzi Advocate General Kokott has delivered her opinion today in Gambazzi...
3. Case note on Gambazzi I have posted a draft case note in English on...

Full post as published by Conflict of Laws on February 28, 2011 (boomark / email).