Strasbourg, 23 March 2004
CCJE (2004) 7
Consultative Council of European Judges (CCJE)
Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Malta
A. ACCESS TO JUSTICE
1. Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
Very significant measures have been taken to inform the public on the functioning of the Judicial system mainly through the Ministry of Justice’s website (http://www.justice.gov.mt). This website, besides listing court statistics, offers a wide range of Court Services, the most important of which are grouped under three categories namely:
For details reproduced from the Ministry’s website regarding these services, please refer to Appendices I, II and III.
A system (called mgov) has been created whereby lawyers assisting parties in court cases are informed by an SMS through their mobile phone, of adjournments of cases made beforehand by the Courts.
The impact of this information to the public on the amount of cases brought before the courts cannot be ascertained. What is sure is that the ease with which important information can be accessed has enhanced the services given to all court users.
2. Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
Measures have been taken to reduce costs by standarizing and simplifying legal documents to commence or continue litigation. In fact many of these documents have been included in the above mentioned website and it is very easy to fill in the blanks, download and print these legal documents.
Other measures to reduce costs where the constitution of Small Claims Tribunals in 1995. These tribunals decide claims not exceeding Lm1500 (3750 Euros) and cases are decided summarily on principles of equity according to law. An appeal from their decisions lies to the Court of Appeal on specific grounds listed in the relevant law.
This measure was accompanied by a relative raising of the inferior competence of the Court of Magistrates in civil matters. These courts are now competent to decide claims exceeding Lm1500 (3750 Euros) but not exceeding Lm5000 (12500 Euros).
The impact of the last two mentioned measures was a reduction in the cases introduced before the courts of superior jurisdiction.
It must be pointed out, however, that recently, the costs of civil litigation, have been significantly increased, both in the inferior and superior jurisdictions.
3. Have measures been taken to ensure an effective "legal aid" system? If so, please describe the system, with specific reference to:
a) eligibility requirements;
b) identification of authorities entitled to grant the aid;
c) budgetary arrangements.
a) eligibility requirements:
The Maltese legal aid system derives from Section 911 to 925 of the Code of Organisation and Civil Procedure. These sections are annexed hereto as Appendix IV.
Please refer to section 912 and 913 of the said Appendix IV for the eligibility requirements.
b) identification of authorities entitled to grant the aid:
The Civil Court and the Advocate for Legal Aid are the authorities entitled to grant legal aid. The courts of criminal jurisdiction also authorise legal aid. In fact, when the accused is urgently brought before the court under arrest, he is offered legal aid without the need to undergo any means test.
c) budgetary arrangements:
The services of the advocates of legal aid are paid out of the annual budgetry allocation to the Ministry of Justice.
4. Have other measures been taken ? For example,
a) conditional fee agreements ("CFAs"), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if he or she wins;
No such measures have been taken.
b) legal costs insurance for
- a party's own legal costs and/or
- any costs which if he or she loses he or she has to pay to the winning party;
No such measures have been taken.
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
Costs in Civil and Commercial litigation are taxed and levied in accordance with the Tariffs in Schedule A annexed to the Code of Organization and Civil Procedure and with the Regulations made by the Minister responsible for Justice.
Judgments, as a rule, award costs against the unsuccessful party. This general rule however can be relaxed when the matter at issue involves difficult points of law or where there is any other good cause. Frivolous or vexatious appeals are penalised by the award of double costs against the appellant.
Section 223 (5) of the Code of Organization and Civil Procedure contains special rules regarding the costs of ‘ex parte’ expert witnesses.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. Have measures been taken to relieve judges from non-judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
The great majority of the non-judicial tasks listed in the Appendix to Recommendation No R(86)12 do not fall within the remit of the Maltese Judiciary.
The Court of Appeal dedicates a lot of time to such tasks as the giving of the oath of allegiance and the oath of office to various state officers and members of professions. These non judicial tasks should be entrusted to other authorities or bodies.
When judges are not assisted by the necessary experienced judicial assistants and court staff, judges waste a lot of time performing tasks which could, and indeed should, be performed by such staff.
2. Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
Small Claims Tribunal have been established since 1995. For more details please refer to the reply given to question A 2 regarding the establishment of such Tribunals.
3. Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
The Ministry of Justice is mainly responsible to make regular review of court workloads and to take the appropriate measures. In the past few years these measures have been mainly directed towards the creation of Small Claims Tribunals, adjusting the monetary competence of the courts and increasing the number of court personnel. The judiciary plays a merely consultative role in such processes.
4. What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
Judges do not play any significant role in the management of judicial infrastructure, human resources, information technology and equipment. The Chief Justice has a consultative role in these matters, but the last word does not belong to him. Chief Justices do not receive any training at all in management techniques. The administration of the courts is the responsibility of the Director General. He is the top administrative official responisble for the management of judicial infrastructures, human resources, information technology and equipment. He is also responsible for initiatives and projects of a capital nature.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
1. Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
There is no specific system assessing the quality of judicial activity.
2. Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:
(i) institutional subjects (centralised and/or decentralised) in charge of data collection, data analysis, as well as receiving follow-up;
(ii) judicial activities that form the object of data collection and analysis;
(iii) relevance of statistical data in professional evaluation of individual judges;
(iv) relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.
Since 2000, quantitative statistical data regarding civil litigation is being extracted from the computerised database which is maintained by the administration of the Courts of Justice and is being published on the Justice Ministry’s Website. The data of the Criminal Courts is kept manually and the information presented is extracted from monthly reports compiled by the Deputy Registrars of all the Criminal Courts.
Everyone can access the Civil Litigation statistics on the Justice Ministry’s Website. These statistics mainly show the number of cases introduced in each court, the numbers that have been disposed of and the numbers which remain pending. The quantitive performance of each judge can be ascertained from the statistics by whoever wants to perform this analysis.
3. Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result in actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);
The responsibility for the evaluation and the monitoring of these statistics rests principally with court administration and ultimately with the Ministry of Justice. It is essential that these statistics e regularily and thoroughly analaysed so that any weakness in the system be identified and the proper remedial action be taken, in good time.
4. In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role played by the judiciary in the same actions?
The evaluation and the monitoring of these statistics does not fall, strictly speaking, within the remit of the judiciary. The judiciary and particularly the Chief Justice has only an advisory role.
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
1. Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
(i) Arbitration in civil and commerical cases
Traditionally, the only ADR scheme available in Malta was Arbitration. This institute was regulated by the Code of Organization and Civil Procedure, promulgated in 1855. Nowadays, the institute of Arbitration is regulated by Act II of 1996, namely the Arbitration Act (Chapter 387 of the Laws of Malta). It established the Malta Arbitration Centre – a body independent of the Government – to conduct domestic arbitration and international commercial arbitration. The Arbitration Act incorporates the UNCITRAL Model Law and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The functions of the Malta Arbitration Centre are:-
a) to promote Malta as a Centre for international commercial arbitration
b) to provide for the conduct of international arbitration in Malta
c) to encourage domestic arbitration as a means of settling disputes
d) to provide the necessary facilities for the conduct of arbitration
Although its Board of Governors (whose function is to formulate the policy and general administration of the affairs and business of the Centre) is appointed by the President of Malta, acting on the advice of the Minister responsible for justice, the Centre is an autonomous institution and Board members are not “subject to the direction and control of any person or authority”.
According to the Arbitration Act only “disputes concerning questions of personal civil status including those relating to personal separation and annulment of marriage are not capable of settlement by arbitration”.
Article 60 of the Arbitration Act states that “saving the provisions of the Constitution and of the European Convention Act, in matters governed by this Act, no court shall intervene or have jurisdiction in any matter where so provided for in this Act”.
Article 15(3) of the Act allows a court to stay proceedings in arbitration matters as follows:
“If any party to an arbitration agreement ………….. commences any legal proceedings in any court against any other party to the arbitration agreement ………... in respect of any matter agreed to be referred to arbitration, any party to such legal proceedings may at any time before delivering any pleadings or taking other steps in the proceedings, apply to that court to stay proceedings and that court or a judge thereof, unless satisfied that the arbitration agreement has become inoperative or cannot proceed, or that in fact there is no dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings”.
Recent laws have made it mandatory for certain disputes to be referred to arbitration. These concern several disputes in connection with Condominia and Co-operative Societies.
Arbitration costs are borne by the parties to the dispute.
(ii) The second kind of ADR scheme is Mediation.
Mediation in civil and commercial cases can be resorted to on a voluntary basis and is not court annexed. If the parties agree to refer their case to a mediation, the judge hearing the case has the authority to stay proceedings. The parties would bear the cost of such mediation.
Conciliation and Mediation in family law cases
Legal Notice 397 of 2003 has introduced in our law a court annexed compulsory scheme of mediation in family litigation. During the initial stage of the court proceedings, the case is assigned to a mediator who tries to reconcile the parties. If unsuccessful, he helps them to try to reach a consensual agreement. During this period, the court proceedings are stayed. The State bears the costs of the mediation if the particular mediator is chosen by the court. If the parties select their own mediatior, they have to bear the costs of his services.
2. Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
In respect of arbitration, the state exercises a “remote” manner of supervision over the Arbitration Centre through its appointment of the Board of Governors where the Attorney General is an “ex officio” member. In respect of voluntary mediation, as yet there are no legal provisions ensuring State supervision. In respect of the court annexed compulsory family law mediation, it is understood that a measure of supervision is exercised by the court. Moreover, subsection (4) of Section 3 of LN 397 of 2003, provides that before assuming the functions of mediator, such mediator must subscribe to an oath in the hands of the Attorney General to act faithfully and impartially and to respect the confidentiality of the proceedings.
3. Is legal aid applicable to all or some ADR procedures?
Legal aid is not applicable to arbitration or to voluntary mediation. Legal aid, however, is applicable to the mandatory court annexed mediation in family law cases. The fees of the mediator chosen by the court (and not by the parties) is paid by the Registrar.
4. Is confidentiality protected? Is any document of the ADR procedure liable to be produced in court, in case mediation failed?
Confidentiality is protected in arbitration through Sections 44(5) and 70(5) of the Arbitration Act. Confidentiality is also protected in mediation schemes.
5. May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?
In theory a judge has the power to act in this way. In practice however, he would respect the wishes of the parties.
b) in-court ADR
1. What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in-court mediation.
In-court ADR occurs only in family law cases. When one of the spouses wishes to initiate litigation for personal separation, such spouse must first ask the court to give its permission for the initiation of such litigation. Before such permission is given, the court must summon the parties to appear before a mediator (either appointed by it or with the mutual consent of the parties). The mediator’s task, in the first place is to try to reconcile the parties. If this fails, the mediator shall mediate between them in an effort to reach an agreement regarding a personal separation by mutual consent. The regulations impose a period of two months for the mediator to complete his assignment. However, this time limit can be shortened or extended by the court.
The judge himself is prohibited to act as a conciliator or as a mediator. Draft deeds of personal separation by mutual consent are submitted to the court for vetting and authorisation. In such cases the initial proceedings are closed by the publication of the deed of consensual personal separation.
If no such solution is reached, the judge grants leave to the parties to institute a suit for personal separation. The pre trial period, during which all evidence is collected, must not extend beyond a period of one year. Then a date is fixed for the trial and after hearing the submissions of the parties, the court proceeds to give judgment.
2. If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
Although LN 397 of 2003 has imposed a mandatory mediation process in family law matters, including in all marital separation cases, yet the aspects mentioned in this question have not been tackled by legislation, except as to the oath of office mentioned in the reply to question D (a) 2 above. The mediators are trained by private companies. The legal notice makes it obligatory for the court to appoint as mediators only those persons whose name appear in two lists published in the Governement Gazette. These lists, compiled by the Minister responsible for justice, contain the names of suitably qualified persons who, in the opinion of the Minister, have the necessary qualities to undertake the duties of mediators. An important safeguard for the parties is the fact that they would normally be assisted by advocates, who would be constantly monitoring the mediation proceedings.
Arbitrators, are also trained privately and the Arbitration Act allows the parties to be represented or assisted by any person of their choice. The same Act, in Section 23, makes it obligatory on a person who is approached as a prospective arbitration to disclose any circumstance likely to give rise to justificable doubts as to his impartiality or independence. Arbitrators can also be challenged. If he does not withdraw, the decision on the challenge is given by the Chairman and his decision is final and binding. Section 20 (5) of the Arbitration Act provides that an arbitrator shall not be liable in damages for negligence in anything done or omitted to be done by him as arbitrator. However, he is liable where his action or omission is attributable to malice or fraud on his part.
3. What legal relevance does an in-court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
In family law cases, court annexed mediation is part and parcel of the proceedings. So, if the mediation is successful, a deed of agreement is drafted and this is submitted to the Court for its approval. The court may hear the parties and/or their lawyers. If the draft is approved (as normally happens), the deed is published by a Notary Public and it would then have full effects at law and therefore can be enforced.
c) out-of-court ADR
1. What kind of judicial endorsement of out of court ADR agreements is possible?
There is no judicial control over arbitration agreements but such control can be exercised over arbitration awards where the court can set aside an award (Art. 70) or uphold an appeal on points of law (Art 70A).
When the parties resort to mediation during the pendency of the case, the court could grant a stay of proceedings. The court can grant a time limit within which the parties can attempt to find a consensual amicable solution. If it appears to the court that a party is abusing this measure, the court can set aside or revoke its order of stay of proceedings.
d) ADR in administrative law disputes
1. Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
A public entity can resort to Arbitration if the dispute refers to a contract containing a specific arbitration clause. Section 969 of the Code of Organisation and Civil Procedure and Section 15(7) of the Arbitration act state that any submission to arbitration made by any administrator or by any person who is not at liberty to dispose of the thing to which the dispute refers, is null.
e) criminal law and ADR
1. Please describe the role and extent of ADR proceedings vis-à-vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
ADR proceedings are, as yet, not envisaged vis-à-vis criminal investigations and for criminal proceedings.
E. CASE MANAGEMENT
a) in general
1. Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
The average duration of a civil case, at first instance, before the courts of limited jurisdiction is:
As regards the Small Claims Tribunals 0.6 years, and as regards the Magistrates’ Courts it is 1.2 years.
The average duration of a civil case in the superior courts at first degree is 2.9 years while at second degree the duration is 2.2 years. The average duration of a case before the Constitutional Court is 1.6 years.
The average duration of a Criminal case at first degree could not be ascertained because the records are kept manually and were not available to the respondent. The average duration of a Criminal case before the Court of Criminal Appeal is 7.2 months or 0.6 of a year.
The respondent was provided by the Court administration with a table showing the age analysis of closed cases compiled from the Legal Case Management which is managed by the Malta Information Technology and Training Services Limited. The respondent obtained the average duration of court cases shown above from this table.
No separate statistics are collected regarding simplified and accelerated procedures which in Malta are called special summary proceedings (instituted under section 167 et seq of the Code of Organization and Civil Procedure)
2. Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgment, to determine the calendar and the time-limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
The Code of Organization and Civil Procedure gives the judge sufficient power to deal with all the aspects mentioned in the question. But judges do not always retain effective control because lack of resources and excessive workloads tend to interfere with case-flow management and this enables the parties and their lawyers to exploit the situation to their own advantage.
3. Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
Yes. Various appeals from administrative tribunals (mostly on points of law) to the Court of Appeal are now being adjudicated by a single appeal judge rather than by a panel of three judges.
b) in civil disputes
1. Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
Many of the measures designed to improve the functioning of justice which are listed in the Appendix to Recommendation No R(84) 5 are truly in place in the Maltese judicial system. However, there is still much more room for improvement in certain areas amongst which the following can be singled out here:
Principle 1:- Proceedings do tend to take more than two sittings.
Principle 2: Although the judge, in principle, is empowered by the law to play an active role in ensuring the rapid progress of the proceedings, however, judges frequently find it difficult, in practice, to perform this duty because of shortcomings in the system like overwhelming workloads and lack of experienced assistants.
Principle 6:- Judgments in contested cases are very rarely given at the conclusion of the proceedings, as we do not have, as yet, the system of “ex tempore’ judgments. Reserving judgments is the norm, and at times, a long period of time, may elapse after the conslusion of the proceedings when the written judgment is finally given. Moreover, judgments tend to be too long. The Judicial Studies Committee intends to advance the case for the implementation of a system of “ex tempore judgments” in the appropriate cases in the near future.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24-25 November 2003.
Section 167 of the Code of Organization and Civil Procedure provides special summary proceedings in the Superior Courts where the demand is solely:
(a) for the recovery of a debt, certain, liquidated and due, not consisting in the performance of an act; or
(b) for the eviction of any person from any urban or rural tenement, with or without a claim for ground rent, rent or any other consideration due or by way of damages for any compensation, up to the date of the surrender of the tenement,
In these cases the claimant, after declaring on oath that in his belief there is no defence to the action, asks the Court to give judgment in his favour without a normal trial.
The writ of summons is served on the defendant without delays and he is ordered to appear in court not earlier that 15 days and not later than 30 days from the date of service. Section 170 further provides that
(1) If the defendant fails to appear to the writ of summons, or if he appears and does not impugn the proceedings taken by the palintiff, on the ground of irregularity or inapplicability, or, having successfully raised such plea, does not by his own sworn evidence, or otherwise, satisfy the court that he has a prima facie defence, in law or in fact, to the action on the merits, or otherwise disclose such facts or issues of law as may be deemed sufficient to entitle him to defend the action or to set up a counter-claim, the court shall forthwith give judgment, allowing the plaintiff’s claim. The defendant may make his submissions to impugn the proceedings taken by plaintiff on the ground of irregularity or inapplicability by means of a note to be filed in the registry of the court or during the hearing.
(2) If the defendant successfully impugns the proceedings on the ground or irregularity, or inapplicability, or if he satisfies the court that he has a prima facie defence to the action, or discloses such facts or issues of law as may be deemed sufficient to entitle him to defend the action or to set up a counter-claim, he shall be given leave to defend the action and file a statement of defence within twenty days from the date of the order referred to in sub-article (4), in which case the defendant shall comply with the provisions of article 158 so far as applicable.
(3) Where leave to defend is given, the action shall be tried and determined, on the same acts, in the ordinary course as provided in this Code.
(4) The order giving leave to defend shall be made orally, a record thereof being kept in the proceedings.
The Courts of Magistrates, when dealing with civil cases in their inferior jurisdiction (exceeding 3750 Euros but not exceeding 12,500Euros), are exhorted (by Section 215) to proceed “summarily and with the utmost despatch consistent with the due administration of justice”.
3. As to simplified procedures, please indicate (and provide details) if law or court practice allow in your country:
(i) simplified methods of commencing litigation;
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
(iii) exclusively written or oral proceedings, as the case may be;
(iv) prohibition or restriction of certain exceptions and defences;
(v) more flexible rules of evidence;
(vi) no adjournments or only brief adjournments;
(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
(ix) the rendering on the part of the judge of a mere "oral" judgment.
(i) simplified methods of commencing litigation:
An example is provided by Section 4 of L.N. 397 of 2003 which provides that authorisation to start a suit for personal separation is demanded by just filing a letter to that effect in the registry of the Court. The letter is addressed to the Registrar and it must show the name and addresses of the spouse filing the letter as well as the details of the other spouse. Such letter shall be signed and filed by the party personally or by his or her lawyer.
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing:
Please refer to the reply to question 2 in this section
(iii) exclusively written or oral proceedings, as the case may be:
This is not possible.
(iv) prohibition or restriction of certain exceptions and defences:
This is not allowed.
(v) more flexible rules of evidence:
This is not applicable.
(vi) no adjournments or only brief adjournments:
This is not possible.
(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings:
The appointment of a court expert, either "ex officio" or on application of the parties, is possible at the commencement of the proceedings.
(viii) an active role for the court in conducting the case and in calling for and taking evidence:
This is possible.
(ix) the rendering on the part of the judge of a mere "oral" judgment:
This is not possible (Please refer to last part of the reply of question 1 in this section).
4. As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1 the judge has the power to decide summarily on:
(i) disputes on which an early decision is required (urgent cases procedure);
(ii) disputes concerning recovery of certified uncontested debts;
(iii) small claims (please specify monetary limit);
(iv) employer-employee relations;
(v) landlord and tenant relations;
(vi) questions of family relations (divorce, custody of children, maintenance);
(vii) disputes involving consumers;
(viii) disputes relating to road accidents;
(ix) manifestly ill-founded claims.
4.2 a summary judgment has or does not have the force of "res judicata":
4.3 a summary judgment is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.
4.1 disputes on which an early decision is required (urgent cases procedure):
The Judge does not decide summarily in urgent cases, unless the defendant admits the claim. The Judge uses the same procedure as in the normal cases except that all time limits are drastically shortened and the case is disposed of much more rapidly.
(i) disputes concerning recovery of certified uncontested debts:
The Judge has the power to decide summarily in these cases. One may add that there is a special procedure for certain debts due to Government Departments. The details of these proceedings result from Sections 466 and 467 of the Code of Organization and Civil Procedure which read as follows:
466. (1) Where a head of any government department desires to sue for the recovery of a debt due to a department under his direction, or to any administration thereof, for any services, supplies, rent or for any licence or other fee or tax due, he may make a declaration on oath before the registrar, a judge or a magistrate wherein he is to state the nature of the debt and the name of the debtor and confirm that it is due.
(2) The declaration referred to in sub-article (1) shall be served upon the debtor by means of a judicial act and it shall have the same effect as a final judgment of the competent court unless the debtor shall, within a period of twenty days from service upon him of the said declaration oppose the claim by filing an application demanding that the court declare the claim unfounded.
(3) The application filed in terms of sub-article (2) shall be served upon the head of department, who shall be entitled to file a reply within a period of twenty days. The court shall appoint the application for hearing on a date after the lapse of that period.
(4) In the cases of an urgent nature the court may, upon an application of the creditor or the debtor, shorten any time limits provided for in this article by means of a decree to be served upon the other party.
467. (1) Any executive title obtained according to the provisions of the last preceding article in the absence of any opposition on the part of the debtor shall be rescinded if upon a request by writ of summons to be filed by the debotr within twenty days from the first service upon him of any executive warrant based on the said title or any other judicial act wherein reference is made to the said title, the court is satisfied that the debtor was unaware of the service of the declaration referred to in sub-article (1) of the last preceding article during the period during which he could oppose the same and that the claim contained in the said declaration is unfounded on the merits.
(2) No opposition other than that sepcifically provided for in this article and in the last preceding article shall stay the issue or execution of any executive act obtained thereunder or the paying out of the proceeds of any warrant or sale by auction carried out in pursuance thereof.
(ii) small claims (please specify monetary limit):
The Judge has the power to decide summarily in these cases. The monetary limit here is Lm1500 equivalent to about 3750 Euros.
(iii) employer-employee relations:
The Judge does not have power to decide summarily in these cases unless the defendant admits the claim or does not appear for the hearing.
(iv) landlord and tenant relations:
The Judge does not have power to decide summarily in these cases unless the defendant admits the claim or does not appear for the hearing.
(v) questions of family relations (divorce, custody of children, maintenance):
The Judge does not decide summarily in these cases. However, interim measures during the pendency of the case are usually decided summarily.
(vi) disputes involving consumers:
The Judge has the power to decide summarily in these cases.
(vii) disputes relating to road accidents:
The Judge does not have power to decide summarily in these cases unless the defendant admits the claim or does not appear for the hearing or else unless the damages fall within the jurisdiciton of the Small Claims Tribunals or the Inferior Courts provided over by Magistrates.
(viii) manifestly ill-founded claims:
The Judge has the power to decide summarily in these cases.
4.2 a summary judgment has or does not have the force of "res judicata";
There is usually a right of appeal also from summary judgments. So a summary judgment has the force of “res judicata” if no appeal is introduced within the strict time limit inforced by law. The Code of Organization and Civil Procedures, besides providing time limits for filing appeals also states in Section 228 that:
228. (1) No appeal shall lie from any judgment given upon admission of the claim, or accepted by the renunciation of the right of appeal or by acquiescence in the findings of the judgment.
(2) Nor shall an appeal lie from any judgment of the Court of Magistrates …. in its inferior jurisdiction as a court of first instance, where the amount of the claim, … does not exceed two hundred liri (500 Euros) and the matter at issue does not involve a point of law determined in the judgment or the determination of a claim for the eviction of any person from any immovable property.
4.3 a summary judgment is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated:
A summary judgment normally determines rights and obligations of the parties. It is not clear what is meant by the phrase “even if a procedure on the merits is not initiated”.
5. Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
The question is understood to refer to interim injunctions, that is temprary orders given by a judge for the purpose of regulating the position between the contending parties, pending the trial of the case.
Section 829 and 830 (1) and (2) of the Code of Organization and Civil Procedures provides as follows:
829. It shall be lawful for any person, without the necessity of any previous judgment, to secure his rights by one or more of the following precationary acts, which shall be issued and carried into effect on the responsibility of the person suing out the act, provided he shall have complied with the conditions prescribed by this Code.
830. (1) The precautionary acts referred to in the last preceding act are the following:
(a) warrant of description;
(b) warrant of seizure;
(c) garnishee order;
(d) warrant of impediment of departure;
(e) warrant of prohibitory injunction.
(2) Saving the provisions of article 870 and or article 357 of the Merchant Shipping Act, any of the acts mentioned in sub-article (1)shall be rescinded, if the party against whom it is issued makes such deposit or gives such security as, according to the circumstances of the case, may be sufficient to safeguard the rights or claims stated in the act, or if it shown that a judicial act accepting liability as provided in sub-article (3) has been filed in the proper registry and nothwithstanding that a deposit is made or security is given as a foresaid, the time limits established in this Title on the creditor to bring forward his action shall continue to apply. Such time limits shall run from the date of the issue of the precautionary act, and failure by the creditor to institute proceedings within the said time limits shall entitle the debtor to withdraw the deposit or cancel the security.
6. Please describe the relevance of time-limits and interlocutory judgments to assure a reasonable duration of ordinary proceedings.
The Code of Organization and Civil Procedures classifies interlocutory decrees into three classes:
(a) Those decrees listed under Section 229(1). These decrees may not be challenged before a definitive judgment is delivered. In fact an appeal from these decrees or judgment can only be made after the definitive judgment and together with an appeal from such judgment.
(b) Those decrees mentioned in section 229(2) from which an appeal lies before definitive judgment.
(c) Those decrees not included under (a) and (b) above from which an appeal may be entered before the definitive judgment only by special leave of the court hearing the case to be requested by an application to be filed within six (6) days from the date on which the decree is read out in open court.
In the case of the last two mentioned types of decrees an application for reconsideration may also be made to the Court hearing the case (provided that no appeal has been filed) within six (6) days. The other party has six (6) days within which to file an answer and the court is to decide the issue as expeditiously as possible.
These short time-limits cut delay. Moreover, the Court of Appeal itself puts such appeals from interlocutory judgments on the fast track. This, together with the fact that the right to appeal from interlocutory judgment is severely limited, as explained above, ensures a proper structure which enables proceedings be finalised without undue delay.
7. What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision on the substantive merits of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
The Code of Organization and Civil Procedure lists the following precautionary acts, as explained in the reply to question 5 of this section:
(a) warrant of description;
(b) warrant of seizure;
(c) garnishee order;
(d) warrant of impediment of departure;
(e) warrnat of prohibitory injunction.
These precautionary acts are carried into effect on the responsibility of the applicant, provided that he has complied with the conditions mentioned in the Code. These acts are regulated by a number of detailed dispositions (Sections 829 to 877 of the Code)
All these acts are issued with urgency and the Code provides remedies to curtail abuses. These remedies are granted after the court hears the parties (except in the case of demand for the issue of a counter-warrant on the ground that the precautionary act has ceased to be in force). These hearings are conducted with urgency (see Section 836(2) of the Code). A brief overview of these precautionary acts is given below.
The warrant of description (Section 839-845). This warrant is issued to secure a right over movable things, for the exercise of which the applicant may have an interest that such movable things remain in their actual place or condition. Sections 840 and 841 state that:
840. (1) The marshal shall execute a warrant of description by describing the things in detail stating the number and quality thereof.
(2) He shall also state the weight or measure, and the value thereof, if the applicant makes an express demand to that effect in the application for the issue of the warrant, or subsequently, by means of a note; in any such case the value shall be stated upon an appraisement made by one or more experts appointed by the court.
841. The things so described shall remain in the custody of the person in whose possession they are found, and such person shall be responsible for their safe keeping, an express injunction to that effect being included in the warrant.
The warrant of seizure of movable property (Section 840 – 848). By this warrant the court orders the marshal to seize from the possession of the debotr, property equal in value to the sum claimed by the creditor, or to seize the thing mentioned in the title by virtue of which the execution takes place.
The garnishee order (Sections 849-854). By this order the creditor secures his rights to obtain the payment of a debt owing to him by attaching in the hands of a third party money or movable property due or belonging to his debtor.
The warrant of impediment of departure of a ship (Sections 855-870) or vessel may only be issued to secure a debt or a claim which could be frustrated by the departure of the ship or vessel.
The object of a warrant of prohibitory injuction (Section 873 to 877) is to restrain a person from commencing the erection of any building or work whatsoever or from demolishing or renovating any building or work, or to restrain a person from entering any premises or place or from doing any thing whatsoever which might be prejudicial to the person suing out the warrant.
The court issues such a warrant only if it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right.
This warrant is also resorted to in family law cases. This section 876(1) provides that:
“Where a spouse has brought or intends to bring before the Civil Court, a suit for personal seperation, the spouse may request such court to issue a warrant of prohibitory injunction:
(a) against the other spouse restraining such other spouse from selling, alienating, transferring or diposing inter vivos whether by onerous or gratitous title any shareholding in any commercial partnership if such shareholding is comprised in the community of acquests; or
(b) against any commercial partnership in which the other spouse has a majority shareholding which pertains to the community of acquests from selling, alienating, trasnferring or otherwise disposing by onerous or gratuitous title, any immovable property or rights annexed thereto owned by that commercial partnership; or
(c) against the other spouse from contracting any debt or suretyhip which is a charge on the community of acquests.
This warrant may also be issued to restrain any person from taking any minor outside the territory of Malta.
8. Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
Our system does not provide for a search order similar to the Anton Piller order. By this order the respondent is required to allow another party to enter the respondent’s premises for the purpose of preserving documents and other evidence which might otherwise be destroyed or concealed by the respondent. Our warrant of description, mentioned in the previous reply, resembles somewhat this search order but the effect of our warrant of description is much more circumscribed and limited.
9. In what circumstances is a first instance judgment provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions may a party filing an appeal obtain suspension of enforcement?
The following judgments are always provisionally enforceable by operation of the law:
(a) any judgment ordering the supply of maintenance;
(b) any judgment providing redress against infringement of the individual’s right to life or providing remedies against illegal arrest or forced labour;
(c) any interlocutory decree.
All other judgments of the courts of first instance, which do not as yet constitue a “res judicata”, are as a rule not enforceable unless such judgment has been declared by the court to be provisionally enforceable. Any interested party may make sure a demand to the court. The Code (Sections 266 et seq.) regulates the procedure of such applications. Inter alia, it also lays down the criteria to be used by the court when granting a demand from provisional enforcement and it also establishes the conditions on which the party filing an appeal may obtain redress on suspensions of enforcement. Sub-section (7) to (ii) of section 266 state that:
“(7) The court shall declare the judgment to be provisionally enforceable if it is satisfied that delay in the execution of the judgment is likely to cause greater prejudice to the party demanding a declaration of provisional enforceability than such execution would cause to the opposite party.
(8) The party against whom execution of a judgment declared provisionally enforceable under this article is sued out, shall, in case of reversal or variation of such judgment, be entitled to damages and interest.
(9) The court before which the record of the proceedings relating to a judgment declared provisionally enforceable under this artilce is for the time being lodged, may at any time order the party entitled to the execution of such judgment to give to the opposite party sufficient security for the payment of the damages and interest which may become due under sub-article (8).
(10) Where a judgment has been declared provisionally enforceable under this article, its execution shall be stayed if the interested party gives sufficient security for the execution of the judgment on its becoming res judicata, including, where the matter refers to the payment of moneys, security for the payment of interest, and, where the matter refers to other things, security to make good any damage which may be caused thereto through his negligence or fault and to restore any fruits derived therefrom.
(11) If any question arises as to the sufficiency of the security tendered under sub-article (10), the court may give such directions as it may deem proper as to whether the execution of the judgment should be suspended until such question is decided by another judgment constituting a res judicata.
10. Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
Malta has implemented most measures listed in Recommendations No R95(5). The following is a non exhaustive list of measures which have not been, as yet implemented
(a) Article 3 – Matters excluded from the right to appeal.
Re (b) Requiring leave from a court of appeal. As a general rule all civil and commercial judgments can be appealed but no appeal lies from judgments given upon admissions of the claim or accepted by the renunciation of the right to appeal or by acquiescence in the findings of the judgment (Section 228(1)). Leave to appeal is applicable in Malta only in the case of some interlocutory judgments when one tries to appeal before definitive judgment and such leave is not given by the court of appeal but by the court of first instance. A system of leave to appeal would be quite unpopular to introduce in Malta.
Article 4 - Measures to prevent any abuse of the appeal system.
Re (b) Allowing the second court to dismiss in a simplified manner, for example without informing the other party, any appeal which appears to the second court to be manisfestly ill-founded, unreasonable or vexatious; in these cases appropriate sanctions such as fines may be provided for:
All appeal applications must be served on the other party and put up for hearing. However vexations or frivolous appeals can be penalised by double costs, fines and even by reporting the advocate responsbile for prolonging the proceedings to the Commission for the Administration of Justice for the appropriate sanction.
Article 6 – Measures improving the efficiency of the appeal procedures
Re (e) where oral hearings take place, ensuring that they are completed as soon as possible (“concentration of oral hearings”). The court should consider the case in connection with the hearing and should pass judgment imemdiately thereafter or within a short time period as provided for by the law:
The Court of Appeal does not pass judgment immediately after the oral hearing is completed. All judgments are reserved. Sometimes because of such weaknesses as severe overloading, judgments are not delivered within a short period after the oral hearing is concluded.
Article 7 – Measures relating to appeals to a third Court.
Malta does not have a court of third degree but only courts of first and second instance.
11. Please express your view concerning measures to improve:
(i) enforcement of court judgments and effectiveness of the activity of enforcement agents;
(ii) transparency of information concerning assets of debtors;
(ii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
(i) The enforcement of judgments and the effectiveness of the enforcement agents can be enhanced if the status of the agents concerned be improved and adequate training be given to them.
(ii) The introduction of the search order similar, to the Anton Piller order would be a step in the right direction.
(iii) A review of the relative conventions, with a view to improve or enhance their provisions will be beneficial.
c) in criminal matters
Please indicate (and provide details) if in your country:
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
(iii) out-of-court settlements are possible;
(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;
(ix) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions).
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities):
This is not possible in Malta because we apply the system of mandatory prosecution. However, the Attorney General has the power (Section 433 of the Criminal Code) to stop criminal proceedings if, in his opinion, the records of the inquiry do not reveal sufficient grounds for filing an indictment against the accused. The Attorney General also has the power to withdraw an indictment already filed. But in all these cases the Attorney General must make a report to the President of Malta stating the reasons for his actions.
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised:
A large number of minor cases have been decriminalized and special tribunals created to deal with them.
(iii) out-of-court settlements are possible:
Out of court settlements are not possible in Malta.
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed:
This procedure has been introduced recently in our Criminal justice system. However, it applies only in cases heard by the Magistrates’ Courts. According to Section 370 of the Criminal Code these courts are competent to deal, inter alia with crimes which are liable to imprisonment not exceeding six months. However, the competence of the Magistrates’ Courts can be extended to enable them to deal with crimes punishable with imprisonment for a term exceeding six months but not exceeding ten years, if the Attorney General and the accused so agree.
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution:
There is no such limitation in Malta.
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail:
Notification is not done by mail, but by the executive police. Jurors are notified for service by the Court Marshalls.
(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions):
This is not possible in Malta. All decisions are issued in writing.
Judgments on line
Sentenzi Online is one of the services that falls under the eGovernment initiative. It is offered by the Ministry for Justice and Home Affairs such that more people will benefit from the use of information technology and communication services. This service brings together a collection of judgments given by the Courts of Justice of Malta from 1944 onwards. The researcher, in this collection, will find judgments of a certain interest and importance delivered by the Courts of Justice of Malta and Gozo.
This service is a very useful electronic research tool, thought to satisfy the requirements of Judiciaries, Lawyers, Notaries, Legal Procurators, Courts' Personnel, Law Students, Journalists and last but not least the Public in General. The service is free of charge, has unlimited use and presents no fees whatsoever to download copies of the judgments full text documents.
Sentenzi Online primarily offers four services:
· Selected Judgements
· Judgements Archive 2001 Onwards
· Judgements Last 12 Months
· Judgements Last 15 Days
Apart from final judgements, the Sentenzi Online system displays also partial judgements (i.e. sentenzi in parte). The types of judgements can be distinguished either:
a) from the Details screen; or,
b) from the Judgement document itself. At the end of each judgement document, there will be the judgement type (i.e. final judgement or partial judgement) printed. Please note that whilst all partial judgements will be visible, the feature which distinguishes them from the final judgements, will only be present for all those judgments entered after June 2003.
Sentenzi Online is offered on a 24 by 7 basis, i.e. 24 hours a day, 7 days a week, and can be read from anywhere in Malta and Gozo, and anywhere in the world as long as there is Internet access. This service compliments the Laws of Malta service that can also be read electronically from www.justice.gov.mt
We would like the system to fulfill people's requirements, so anyone who comes across any problems or shortfalls, is kindly asked to immediately notify the System Administrator.
This service includes all the judgments given from 1944 onwards. Judgments given from 1944 to 2000 have already been published in a collection of books called "Kollezzjoni ta' Decizjonijiet tal-Qrati Superjuri ta' Malta" (published by Bonavia Offset Printers). Currently there is an ongoing initiative where judgments of certain interest and importance, given from 2001 onwards, are being indexed as well.
Til to date it was not possible to publish the whole text of the judgments given from 1944 to 2000. Instead, we are offering a summary of key legal points taken. Such sentence is archived with reference to the main keywords, book volume number and page of the publication where one can find the judgment full text.
Please note that Judgments between 1967 and 1984 have not been published.
Judgements Archive 2001 Onwards
This archive holds all judgments given from the 1st of January 2001 onwards. Although this section can be viewed as a search utility, it is more intended to help lawyers in their practices, since it will give them immediate access for the judgments as soon as these are given. The archive includes all Courts decisions, Superior and Inferior, Civil and Criminal as well as those of the Civil Tribunals.
The elapsed time between when the judgment is given and the time when it is published on the net, depends solely on Courts' personnel. Each judgment is gathered in the archive a few minutes after the Deputy Registrar saves it on the core system. If the Court official fails to save the judgment for whatever reason, as a consequence this judgment will not be visible on the net.
This service offers the facility to conduct advanced searches amongst judgments records. It searches according to the criteria given to the system. The site also makes use of drop down lists (for further ease of use).
Judgements Last 12 Months
This section contains all the judgments given in the last 12 months. This service can be used once the judgment date is known and falls within the past 12 months parameter.
Judgements Last 15 Days
This service offers a collection of judgments given by the Courts of Justice and Tribunals in the past 15 days. This section has been thought of mainly with the journalists in mind. This service will help them report on the Courts operations. Moreover, this utility can also be used by the general public, which likes to keep abreast with the latest judgments given by the Court institution.
Whilst every effort is being made to ensure the correctness and integrity of the information published, as well as in their cataloging, there might be some mistakes due to the large volumes of information that will be stored on this site. Your feedback will be appreciated, whilst every suggestion to better the level of service given by the site will also be noted.
Comments and suggestions maybe addressed through the "Contact the Expert" page.
Civil Cases on the web is another eGovernment service offered by Ministry for Justice and Local Government so that more and more people will benefit from the advantages offered by information technology and communication.
Civil Cases on the web is a utility tool which provides electronic searches intended to serve the Judiciaries, Lawyers, Notaries, Court Personnel, Students, journalists and the public in general. The service is free of charge and with unlimited use.
The Civil Cases online system incorporates six services:
· Introduced Cases
· Pending Cases
· Cases closed during the past year
· Sitting Search
· Noticeboard List
· Court Deferrals/Adjournments
The Civil Cases online system is a service on the web which can be accessed twenty four hours a day and seven days a week. Moreover, this information can be accessed from anywhere in Malta and Gozo and abroad where Internet is provided.
The collection of the Civil Cases viewed from this site is:
· Introduced Cases (new cases)
· Pending Cases
· Cases closed during the past year
Introduced Cases (new cases)
New civil cases are continuously registered in any one of the registries of the Civil Courts in Malta and Gozo by legal representantives (lawyers or a legal procurators) or by any one of the parties (for cases presented at the Small Claims Tribunal). The new cases are then processed accordingly and assigned to a judiciary, which will later appoint the first sitting.
This service is a collection of new cases, which were introduced in the Civil Courts of Malta and Gozo which:
· have not yet been appointed a sitting; or
· have only been appointed the first sitting.
This service is a useful tool for Lawyers, Legal Procturators and the general public, which present a case to the Civil Courts, and may want to know in front of which Judiciary is the case going to be heard, and on which date.
This service comprises all those cases which are currently pending in front of the Civil Courts and Tribunals of Malta and Gozo. Therefore, all cases which have more than one sitting and have not been closed yet can be searched through this facility.
Other than case related details, like Case Reference, Court and Judiciary, one can also view information on the parties involved and the sittings linked to the case. From the sitting list, one has the facility to access the verbal of the required sitting, if this is available.
It is important to note that the Verbali shown in the Civil Cases website are linked with the sitting held after July 2002 onwards. Also, certain verbali cannot be viewed unless they are made public by the Courts' registries.
Cases closed during the past year
This service offers you the facility to search for any case that has been terminated within the past year. Throught this service it is possibile to view details like those offered by the Pending Cases service, described in the above paragraphs. Moreover, since the case will be terminated, other details will be available:
· the case taxation information;
· whether the case has been appealed or not.
For every sitting held, a list containing all the cases that are going to be heard during the day for the particular hall, called the sitting list, is attached to a noticeboard by each hall's entrance. These lists are attached before the sittings begin inorder to help and guide the general public.
The service offers the facility to search for the same list as shown on the Noticeboard.
If you are a lawyer or a legal representative, this is an ideal tool to search your daily sittings. The same service offers the facility to view the sitting list for each case shown on the site.
From this list one can also access the respective verbali. If you wish to know which verbali are shown on the site, please refer to Kawzi Pendenti section within this help page.
Court Deferrals / Adjournments
Sometimes Court Sittings, can be deferred from their original appointment date to another future date. This can happen well in advance of the actual sitting date with adequate notice, as much as can happen on the same day of the sitting. This service will be showing such deferrals thus helping to reduce inconvenience to the general public and/or legal representatives as much as possible.
By choosing any date from the calendar, the site shows whether the sitting has been deferred or not. This will make it possible to know whether one's case is still to be heard on the appointed day, or put off to another date, from the commodity of your house or office.
Contact the Expert
Any comments and suggestions can be submitted by using this page.
The Hall Usage service gives the facility to each and every person accessing the site to check which judiciary is operating in which hall, on any particular date. A monthly calendar is shown for the present month, together with other two links, one to view the calendar of the past month and another one to view the calendar of the next month. When choosing a day from the calendar, the site displays a page containing the list of all sittings for that particular day.
Any comments and suggestions can be submitted by using the "Contact the Expert" page.
OF THE ADMISSION TO SUE OR DEFEND WITH THE
BENEFIT OF LEGAL AID
911. (1) The demand for admission to sue or defend with the benefit of legal aid in any court mentioned in articles 3 and 4 and before any other adjudicating authority where the benefit of legal aid is by law granted, shall be made by application to the Civil Court, First Hall.
(2) Nevertheless, such demand may also be made orally to the Advocate for Legal Aid.
(3) The decree granting the benefit shall apply to all the courts and adjudicating authorities mentioned in sub-article (1).
(4) The Advocate for Legal Aid shall render his professional services to persons whom he considers would be entitled to the benefit of legal aid, and prior to their obtaining such benefit, prepare and file all judicial acts, which may be of an urgent matter. The following procedure shall be followed:
(a) the Advocate for Legal Aid, shall file an application in the competent court in his own name requesting that he be authorised to file specific judicial acts, on behalf of a person or persons claiming the benefit for legal aid as he considers the matter urgent;
(b) the competent court shall, in such an event, allow such request unless there are serious reasons to the contrary;
(c) the Advocate for Legal Aid, after the judicial acts are allowed to be filed, shall then follow the normal procedure leading to the appointment or otherwise of an advocate and legal procurator ex officio as provided in this Title:
Provided that if the Civil Court, First Hall, shall subsequently exclude the benefit of legal aid, this shall not produce the nullity of any judicial act filed with such benefit but shall merely terminate for the future the benefit of legal aid given as aforesaid, and the court may order that the person deprived of such benefit pay all costs incurred.
(5) The Minister responsible for justice shall provide such facilities as are necessary for the proper administration of the benefit of legal aid.
(6) There shall be an Advocate for Legal Aid and the expression ''Advocate for Legal Aid'' in this Code or in any other law includes any other lawyer, officer or public officer designated by the Minister responsible for justice to perform, under the guidance of the Advocate for Legal Aid, any function pertaining to the Advocate of Legal Aid or to the administration of the benefit of legal aid.
912. No demand as is mentioned in article 911 shall be granted unless the applicant confirms on oath, in the case of an application, before the registrar, and in the case of an oral demand, before the Advocate for Legal Aid:
(a) that he believes that he has reasonable grounds for taking or defending, continuing or being a party to proceedings; and
(b) that excluding the subject-matter of the proceedings, he does not possess property of any sort, the net value whereof amounts to, or exceeds, three thousand liri, or such other sum as the Minister responsible for justice may from time to time by order in the Gazette establish, not including everyday household items that are considered reasonably necessary for the use by applicant and his family, and that his yearly income is not more than the national minimum wage established for persons of eighteen years and over, or such other sum as the Minister responsible for justice may from time to time by order in the Gazette establish:
Provided that in calculating the said net asset value, no account shall be taken of the principal residence of applicant or of any other property, immovable or movable, which forms the subject matter of court proceedings, even though such other property is not the subject-matter of the proceedings in respect of which legal aid is being applied for:
Provided further that in calculating the income, the period of computation shall be the twelve months’ period prior to the demand for the benefit of legal aid.
913. (1) The provisions of the last preceding article shall not apply to the granting of legal aid to any person for bringing an action for the correction or cancellation of any registration, or for the registration, of any act of birth, marriage or death.
(2) Where any such action is disallowed the court shall deprive of such benefit the person admitted to proceed with the benefit of legal aid and, unless it sees good cause to the contrary, order him to pay all costs of the suit.
914. (1) Where the demand is made by an application, the Civil Court, First Hall, shall refer the application to the Advocate for Legal Aid who shall summarily examine the demand and report to the Civil Court, First Hall, whether the applicant has reasonable grounds for taking or defending proceedings, and where the demand is made orally to the Advocate for Legal Aid, he shall proceed directly with such examination and report:
Provided that no such examination shall be necessary where the demand for admission to the benefit of legal aid is made by the defendant in first instance or the respondent in second instance, and such defendant or respondent shall always be admitted to defend with such benefit upon taking the oath prescribed in article 912.
(2) Where the defendant desires to set up a counter-claim against the plaintiff, the said examination shall be made in regard to such counter-claim.
(3) Where the Advocate for Legal Aid deems it necessary to examine witnesses, he shall apply to the Civil Court, First Hall, for such witnesses to be summoned to attend before him.
(4) The writ of subpoena to such witnesses shall be issued free of charge.
(5) The Advocate for Legal Aid, before taking the evidence of the witnesses, shall administer the oath to them.
(6) Should any witness, duly summoned, fail to attend, the Civil Court, First Hall, shall, on the report in writing of the Advocate for Legal Aid, proceed in the manner provided in article 575.
915. (1) Upon a demand for leave to proceed with the benefit of legal aid, the Advocate for Legal Aid shall through the marshal cause notice of the demand to be given to the opposite party calling upon such party to give, within four days from such notice, all necessary information respecting his reasons against the claim of the applicant.
(2) It shall be lawful for the opposite party to demand the issue of subpoenas to witnesses whom he desires to be examined in his interest by the Advocate for Legal Aid.
(3) The provisions of sub-articles (4), (5) and (6) of the last preceding article shall apply to such witnesses.
(4) Upon the conclusion of the examination of the witnesses, or upon the expiration of the time referred to in sub-article (1), the Advocate for Legal Aid shall, within four days, submit his report to the Civil Court, First Hall.
916. Where in any particular case, the character of the examination to be made by the Advocate for Legal Aid is such as to require a longer period of time, he shall make an application to the Civil Court, First Hall, and the court may grant such extension of the time as it may deem necessary.
917. If the report of the Advocate for Legal Aid is in favour of the applicant, the latter shall be admitted to the benefit applied for; but if the report is unfavourable, it shall be examined by the Civil Court, First Hall, which shall give the parties the opportunity to make their submissions, before it decides on whether to accept the adverse report, or to reject the report and admit the demand.
918. The Civil Court, First Hall, shall assign to the party admitted to proceed with the benefit of legal aid the advocate and the legal procurator whose turn it is according to the rota referred to in article 91, and it shall be lawful for such party for a good cause, to request the court, through the Advocate for Legal Aid, to substitute the advocate or legal procurator by another advocate or legal procurator from the rota:
Provided that if the party is admitted to appeal with the benefit of legal aid from a judgment of first instance, he shall continue to be served by the advocate and legal procurator assigned to him as aforesaid.
919. (1) A person shall not be admitted to proceed with the benefit of legal aid –
(a) where in the same cause and by the same court a demand made by such party for admission to the juratory caution or any other benefit whatsoever has been disallowed for want of a probabilis causa litigandi on the part of the applicant in respect of the action which he intends to prosecute; or
(b) where in regard to the same action, such party has already been by the same court refused admission to proceed with the benefit of legal aid for want of a probabilis causa litigandi.
(2) The provisions of this article shall apply so long as the circumstances relating to the absence of a probabilis causa litigandi remain the same.
920. (1) The person admitted to proceed with the benefit of legal aid shall be exempt from the payment of all fees and from giving security for costs; but the plaintiff, or the defendant setting up a counter-claim, as the case may be, shall give a juratory caution to pay the costs, if able to do so, to the opposite party, in case it shall be so adjudged.
(2) Where the party proceeding with the benefit of legal aid is cast in costs, it shall in no case be lawful for the registrar to claim from the successful party the fees due to the registry.
921. If the party admitted to proceed with the benefit of legal aid succeeds in the action, he shall, out of the amount obtained or out of the proceeds of the judicial sale by auction of the movable or immovable property effected in pursuance of the judgment, pay the fees due to the registry, advocate, legal procurator and to the curators and referees, if any, saving his right of reimbursement as against the party who may have been ordered to pay such fees.
922. (1) All acts filed by the party proceeding with the benefit of legal aid shall be null if they are not in accordance with the terms of the admission to such benefit.
(2) Nevertheless, it shall be lawful for the advocate assigned to the party admitted to proceed with the benefit of legal aid to bring the action in a manner different from the terms of the admission, if he deems it expedient so to do in the interest of such party, provided he shall not substantially alter the claims admitted in the report of the Advocate for Legal Aid.
923. (1) The Civil Court, First Hall, shall deprive of such benefit the person admitted to proceed with the benefit of legal aid if it is shown that he possesses capital or income exceeding that established for the grant of legal aid.
(2) If it is shown that he knowingly possessed such capital or income at the time the benefit of legal aid was granted or that he knowingly had an increase in his financial circumstances pendente lite thereby possessing such capital or income in excess of that established for the grant of legal aid and had failed to report the same to the Civil Court, First Hall, then it shall be lawful for the said court to condemn him for contempt of court:
Provided that no contempt proceedings shall be taken by the said court if such a person is liable to legal proceedings for perjury, and the said court has ordered that he be forthwith arrested, and that a copy of the acts be transmitted without delay, through the registrar,to the Court of Magistrates in order that proceedings may be taken according to law.
(3) The Civil Court, First Hall, shall also deprive the applicant of such benefit if he is proceeding vexatiously.
(4) In all cases in which the applicant for the benefit of legal aid has been deprived of such benefit, he shall be liable personally for all the costs of the proceedings to which he would have been liable if the benefit of legal aid had not been granted to him.
924. If the advocate or legal procurator assigned to the person admitted to the benefit of legal aid, without good cause, refuses to undertake or continue the case, it shall be lawful for the Civil Court, First Hall, to sentence such advocate or legal procurator to pay the expenses necessary for the suit, or order him to undertake or continue the case under pain of interdiction from the exercise of his profession for a period not exceeding one month.
925. (1) The advocate or legal procurator assigned to the person admitted to the benefit of legal aid shall:
(a) act in the best interest of the person admitted to the benefit of legal aid;
(b) appear in court when the case of the person admitted to
the benefit of legal aid is called;
(c) make the necessary submissions and file the requisite notes, writs of summons, statements of defence, notices, applications, and other written pleadings as circumstances require.
(2) The advocate or legal procurator shall remain responsible for a cause assigned to him as aforesaid, until the same has been finally disposed of, even though the period of his appointment may have expired.