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After listing possible grounds of recovery S Hedley writes:

"3. Nobody has disputed that grounds A and F are accurate so far as they go, but there is no consensus whether either constitutes a proper ground for recovery in itself. Discussion of the other grounds has been muted, indeed barely perceptible."

and

"It might shorten the discussion if someone were to suggest some grounds that *can't* apply."

I don't know if the group includes comparative remarks among what makes discussion of the grounds more perceptible. In Italy our civil procedure (art 395) code only lists 6 grounds on which you can obtain the 'revisione' of a civil judgement (roughly comparable to your having a judgement reversed). They can be briefly summarised as follows:
1) the parties' dolus to the detriment of the opponent (which would support the view that fraud is relevant);
2) decision was rendered on the basis of evidence acknowledged as false after delivery of the judgement;
3) discovery, after the decision was delivered, of relevant documents that could not be produced during the trial due to force majeure;
4) decision is the result of a mistake of fact evidenced in the proceedings (eg contradictory assumptions etc);
5) decision is contrary to res previously judicata;
6) decision is the consequence of the dolus perpetrated by the judge, provided that in respect of such dolus a judgement has been delivered (this is a case of fraud too, I am afraid, and the wicked contend it is far from alien to our joyful Mediterranean mentality).

Note that these are only grounds on which the judgement may be set aside and are NOT concerned with restitution in the first place. Evidence a contrario of this is that unjust enrichment as a causative events is not listed among them. Restitution is but one further development. The repayment issue is dealt with in very concisely (art 402), by simply saying that 'within the decision that reverses the judgement the judge orders restitution (more precisely: eventuale restituzione) of what may have been paid on the basis of the reversed judgement'. This, however, needs interpreting.

Restitution is defined in the code as 'eventuale restituzione', which can be roughly translated as 'possible, if the circumstances suggest it as reasonable'. I guess this will normally be the case, but the sense of imperspicuity characterising this adjective (and indeed more often than occasionally Italian civil justice itself) should at least discourage us from taking for granted that restitution is obvious.

Arianna Pretto
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