Many a time do lawyers find themselves engaged by clients seeking to avail of a civil remedy against a defendant whose residential address, or even whereabouts, are unknown. This is becoming more common in family cases in Malta involving foreign parties who would have departed from Malta after attempting to build a new life away from their home. This scenario calls for the appointment of curators, which notion is envisaged by Article 930 of Chapter 12 of the Laws of Malta.

Curators (known as kuraturi deputati in the Maltese language) are tasked at Law with safeguarding the best interests of the person they represent with utmost diligence. Where the defendant’s address is unknown by the person instituting the action, curators are bound to do their best to try to contact the person whom they represent and take all possible measures to identify their place of residence. Should they succeed, they must inform the person of any judicial act and of its contents and to continue looking after their interests with utmost diligence and responsibility. If the person’s address remains unknown despite the curator’s efforts, he is then bound to take all the necessary measures to safeguard the person’s rights.

The Law contemplates other situations besides the one mentioned in the first paragraph, in which the need for curators might arise, for reasons including but not limited to; representing the interest of any minor not legally represented, representing a person with a mental disorder or other condition that renders him incapable of managing his own affairs, as well as any interdicted person. Curators may also be called upon to represent the interests of any person presumed to be dead, where any other person claims to succeed to the rights of such person, as well as the interest of any commercial partnership or any body of persons where any of the persons vested with its representation are absent from Malta.

The demand for the appointment of curators must be lodged by means of an application to be filed simultaneously with the lawsuit (or any act whereby the action is commenced). In other situations, where the necessity to appoint curators arises after the commencement of the lawsuit, the application may be made in writing in the course of the proceedings or even by means of a verbal demand during the hearing of the suit.

In a family context, the need for curators might arise in cases where a parent of foreign nationality (called the “deserting parent”) who would have been residing in Malta together with his/her partner or spouse (called the “deserted parent”) and minor children, abandons the matrimonial home and returns to his/her country of origin, leaving the deserted parent (who is of Maltese nationality or otherwise) to raise their children without disclosing his whereabouts and cutting ties with the family altogether. In cases where the care and custody of the children is vested in both parents jointly, which takes place by way of default under Maltese Law, the deserted parent will require the deserting parent’s signature and consent prior to making certain decisions concerning the minors’ health and education. This situation has also proved to be a nuisance for parents whose minor children are not yet in possession of a passport and who must apply for a new one in order to travel for leisure or even for academic purposes.

Taking the above scenario as an example, the deserted parent must file a lawsuit in the Family Section of the Civil Court to demand the exclusive care and custody of the minors, and in parallel to the lawsuit, file an application for the appointment of curators to represent the deserting parent.

The next step after the Court makes an order for the appointment of curators, is the issuing of the banns (il-bandi) which are posted up at the entrance of the Court building. If the deserting parent, in the scenario mentioned above, has close relatives or friends who reside in Malta, a copy of the banns and the pleading must be served on said relatives or friends, and where no relations are known, these must be published in the Government Gazette and in at least two daily newspapers. This shall be done at the applicant’s expense. Any person interested in accepting the appointment shall have six days within which to do so, which acceptance is subject to the Court’s confirmation of the curator so appearing. If, however, no one lodges an acceptance to the appointment within the time frame stated above, the Court shall appoint as curators an advocate and a legal procurator from the rota established by Law.

Curators have a duty to exercise their best diligence for the benefit of the interests they represent. In the event of misconduct or negligence on their part, or should there arise any reasonable objection to the curators selected from the rota for any reason, the Court may exercise its authority to remove them from the case and appoint others from the rota in their stead.

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What is a Magisterial Inquiry?

As the name implies, a Magisterial Inquiry is an investigation carried out by a Magistrate not acting as a court but rather as an impartial officer for justice seeking to delve deeper upon the receipt of any report, information or complaint received by the Police regarding any offense liable to the punishment of imprisonment exceeding three years.

Why is it held?

The primary focus is, if the subject-matter of the offense still exists, the state thereof, with each particular, shall be described, and the instrument, as well as the manner in which such instrument may have produced the effect, shall be indicated.  To any such investigation, an inquest on the spot shall be held.  The inquest shall be held by a magistrate or, in certain cases before the Court of Magistrates (Gozo), by the registrar of that court if no Magistrate can physically be present.

What happens if the Magistrate does not have the necessary skills to carry out the inquest?

Then the Magistrate shall engage the necessary experts to this end and assist in the inquest.  Examples of such experts are scene of the crime officers, DNA experts, computer experts, financial experts.  If it is deemed to be expedient, the Magistrate may empower the experts to receive documents and to examine witnesses on oath and to take down their depositions in writing. Experts employed in the inquest for the purpose of collecting and examining any fingerprints and samples for analysing human DNA are to transmit their findings not only to the Magistrate but also to the Police simultaneously and immediately.  Experts are qualified persons in any art, science or trade who may be competent to ascertain the traces left by the offense, the condition and particulars of the permanent fact, the material means by which probably the offense was committed, the effects produced by the offense, the further effects which the offense might produce, and their probable duration.  The experts shall, in connection with anything forming the subject-matter of their appointment make all such observations and experiments as their art, science or trade may suggest. They shall state the facts on which their observations are based and shall give their opinion by means of a written report.  Report of experts and depositions of witnesses heard by them are to be confirmed under oath by the experts and are to be annexed to the procès-verbal – i.e. the report drawn up by the Investigating Magistrate.

What happens once the procès-verbal is concluded? 

The procès-verbal, if regularly drawn up, shall be received as evidence in the trial of the cause.  The witnesses, experts or other persons who took part or gave evidence during the Magisterial inquest shall be included in the list of witnesses of the Attorney General.  Similarly, all documents and articles exhibited at the inquest and any other material object, in respect of which a procès-verbal has been drawn up, and which can be preserved and conveniently exhibited, shall always be produced at the trial, together with the procès-verbal, by the Attorney General during the trial.

Is there a time-limit for the Magistrate to conclude this investigation?

Where the procès-verbal is not drawn up within sixty days from receiving the report, information, or complaint, the magistrate shall draw up a report stating the reason for the delay, and this report shall be transmitted by the magistrate to the Attorney General not later than three working days from the lapse of the sixty days. At the end of every month after the first report shall have been drawn up, the magistrate shall draw up another report stating again the reason for the delay, and every such subsequent report shall be transmitted by the magistrate to the Attorney General not later than three working days from the lapse of the month.

What rights do victims have during this process?

After the lapse of the period of sixty days, every interested person may by application, request the magistrate to be heard as a witness, or to hear as witnesses the persons indicated in the application. The application shall be served on the Attorney General who may reply within four days.  The Magistrate will then decide whether to accede to such a request or not.

Is the Attorney General kept in the dark until the procès-verbal is concluded?

No. The Magistrate is to communicate to the Attorney General such information about the inquest as may be requested by the Attorney General who moreover shall, always, have access to the record of the proceedings of the inquest and to all documents and material objects exhibited in the course of the inquest including the reports of experts and depositions of witnesses.  Similarly to the Attorney General, the Magistrate prior to the conclusion of the procès-verbal may, upon a request made by the Financial Intelligence Analysis Unit, on a case by case basis and where the information is necessary for the prevention, detection and combating of money laundering, associate predicate offenses and terrorist financing, give access to the record of the proceedings of the inquest and to all documents and material objects exhibited in the course of the inquest, including the reports of the experts and deposition of witnesses, provided that this information shall only be used by the Financial Intelligence Analysis Unit for the purpose for which it was provided.

Does the Magistrate have a limit as to what can be done during this type of an investigation?

No. The truth is priceless, and justice should not have any limits for the truth to be uncovered.

Consider for instance in the case of death. A magistrate may, where necessary, order the dissection and the internal examination of the body.  The magistrate may appoint a medical expert or experts and he may also empower such expert or experts to hear evidence on oath for establishing the identity of the body and to ascertain the cause of death. If the body has been buried, it shall be lawful for the magistrate to order the disinterment thereof with all due precautions, if such disinterment can be affected without prejudice to public health.  It shall be lawful for the magistrate to order the arrest of any person whom, at any inquest, he discovers to be guilty, or against whom there is sufficient circumstantial evidence, as well as to order the seizure of any papers, effects, and other objects generally, which he may think necessary for the discovery of the truth.  It shall also be lawful for the magistrate to order any search into any house, building or enclosure, although belonging to any other person, if he shall have collected evidence leading him to believe that any of the objects identified or referred to during the inquest may be found therein.  It shall also be lawful for the magistrate to order that any suspect be photographed or measured or that his fingerprints be taken or that any part of his body or clothing be examined by experts appointed by him for the purpose.  During such an investigation, the magistrate shall have the same powers and privileges of a presiding magistrate of the Court of Magistrates as court of criminal inquiry.  In collecting evidence in connection with such an inquiry, it shall be lawful for the magistrate to order, if he deems it expedient so to do, that no person shall leave the place where the investigation is being held.  If the door of the place where any inquiry is to take place, is found closed, and no one shall appear to open it, it shall be lawful for the magistrate to order the said door to be forced open.

What happens in practice when the Magisterial Inquiry is concluded?

The record of the inquiry, i.e., the procès-verbal, all annexes and all documents are forthwith transmitted by the magistrate to the Attorney General within the period of three working days upon conclusion.  Where in the procès-verbal the magistrate shall have ordered that a person be arraigned in court on any one or more charges, the magistrate shall order that a copy of the same procès-verbal shall be transmitted by the registrar to the Commissioner of Police who, shall proceed accordingly.  In case of doubt the Commissioner of Police may consult with the Attorney General who may direct that no proceedings are to be taken or that the proceedings to be taken are to be for a charge or for charges different from those specified by the magistrate in the procès-verbal.  Provided that where the Attorney General shall have directed that no proceedings are to be initiated as suggested by the Investigating Magistrate, then the Attorney General shall inform in writing the President of Malta with the reasons as to why such a decision was taken.

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By means of Directive 2014/41/EU of the European Parliament and the Council dated 3^rd April 2014, as subsequently published in the Official Journal of the European Union on the 1^st May 2014, European Investigation Orders, became possible.

The raison d’être behind EIOs is to ensure a faster and more efficient manner of preservation and transmission of evidence situated in one territory of the Union, when that same evidence is required in another Union member state to be used in criminal trials.

This system, one may opine, has generally improved upon the previous traditional regime of letters rogatory both in terms of speed and in terms of efficiency.

Yet, this tool being only 9 years old, is far from perfect and potentially still must pass from further vetting by the Courts of Justice of the European Union.

The most notable of such tests took place on the 11^th November 2021, in the case C-852/19 as a result of a preliminary ruling request made by the Specialised Criminal Court of Bulgaria in the criminal proceedings brought against Ivan Gavanozov.

The criminal case in Bulgaria against Gavanozov centred around running an organised group and of having committed tax offences. The Bulgarian authorities, in pursuance of their investigation and eventual prosecution, wanted to effect searches and seizures and hear a witness in the Czech Republic on the basis of an EIO.

Gavanozov opined differently.  He claimed that Bulgarian law lacked any legal remedy both against the issuance of the EIO and the lawfulness of searches and seizures/witness hearings and as a result was in breach of his rights.

The Specialised Criminal Court of Bulgaria, referred the matter to the CJEU, asking:

1. whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, and Articles 7 and 47 of the Charter of Fundamental rights of the European Union, read in conjunction with Articles 8 and 13 European Convention on Human Rights, must be interpreted as precluding legislation of a Member State which has issued an EIO that does not provide for any legal remedy against the issuing of an EIO the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference?

2. whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, as well as Articles 7 and 47 of the Charter, read in conjunction with Articles 8 and 13 ECHR, must be interpreted as precluding the issuing, by the competent authority of a Member State, of an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such an EIO.

The CJEU after having considered all the legal arguments brought forward by the parties and all relevant legisiation, decided by way of reply to each of the questions:

1. Article 14 of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, read in conjunction with Article 24(7) of that directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of a Member State which has issued a European investigation order that does not provide for any legal remedy against the issuing of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference.

2. Article 6 of Directive 2014/41, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 4(3) of the Treaty on European Union, must be interpreted as precluding the issuing, by the competent authority of a Member State, of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such a European investigation order.

The Court in reaching its conclusion followed the Opinion of Advocate General Bobek whereby he concluded in no uncertain terms that all issued acts will, by default, be tainted because the legislation under which they were issued was itself incompatible. He refers to the ECtHR, which repeatedly found that the absence of remedies against investigative measures in Bulgaria, such as searches and seizures, is in breach of the minimum standards of Art. 13 ECHR (the right to an effective remedy).  As long as the Bulgarian legislature does not remedy this situation, Bulgaria is in constant breach of fundamental rights and can therefore not take part in the mutual recognition scheme brought about by the EIO.

The concept of mutual recognition and mutual trust has as a rule the fact that when the executing authority is required to recognise an EIO transmitted in accordance with Directive 2014/41, without any further formality being required, and is to ensure its execution in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing Member State, that authority must be sure that the issuing State complies with the EU’s fundamental rights. This includes the persons’ right to contest the need and/or lawfulness of an EIO and to obtain appropriate redress if an investigative measure has been unlawfully ordered or carried out.

Since the lack of legal remedies against the investigative measures in question and the issuance of an EIO in the current Bulgarian legislation infringes Art. 47(1) of the Charter and also rebuts the presumption of mutual trust, Bulgaria is not able to issue EIOs anymore.

Unfortunately, the situation in Malta does not differ from the situation in Bulgaria!

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What happens if Person A files a suit against Person B and B, following this, files a separate case against A on the same merits while the first case is still pending? Such scenario is more common than one might think and the consequences of allowing both actions to co-exist are adverse, to say the least. From a purely legal perspective, having both actions live on separately can result in conflicting judgments. The successful litigant in both cases will face difficulty in enforcing the respective conflicting judgment. Moreover, even from an administrative perspective, having two actions on the same merits is surely not the best use of the Court’s recources.

It is precisely because of this that the law affords two options. The first option (Article 792 of the Code of Organisation and Civil Procedure) consists in requesting the Court to transfer the case before the Court first seized of the matter so that it may be heard by such court (the plea of lis alibis pendens). The second option (Article 793 of the same Code) involves requesting a connection of actions.

The former option results in the second case being transferred for hearing before the first court. This avoids a situation in which two different judgments are delivered on the same merits. The raison d’etre of such remedy was explained in two recent judgments: Claudio Mangion vs Charlene Friggieri et (decided by the Civil Court First Hall on the 17th of May 2021) and Angelina sive Gina Balzan vs L-Onorevoli Prim Ministru et (decided by the Civil Court First Hall on the 4th of May 2021).

In the former case, the Court explained that having two actions on the same merits is a very serious matter due to conflicting judgments. It further explained that should such plea be upheld, both cases would be heard together as one (‘fi proċess wieħed.’) The latter judgment analysed the checklist which must be satisfied for this plea to be successful. The Court held that the two cases need to concern the same parties acting in the same capacity, both cases need to have the same subject, and both cases need to have the same legal grounds.

While the first two requirements are relatively straightforward, the third is not so easily satisfied. If the two cases concern the same parties, the same subject, but the legal ground/s are different – for example, one is based on contract and the other non-contractual – the third requirement of the plea would not be satisfied. Thus, in theory, both actions can co-exist.

This is where the connection of actions comes in. If the link between the two cases or actions is present but is not immaculate, or one of the above requisites is not satisfied, one may instead opt for this option. In such case, as explained by the Civil Court First Hall in the abovementioned Mangion vs Friggieri et judgment, when two actions are connected, two separate judgments are given. What needs to be proven in such case is that both cases are linked through a common subject and that the result of one will affect the other.

Therefore, to answer the premise question, if Person A files a suit against Person B, and B files a case against A on the same merits, the exercise that must be undertaken is to see how similar the two cases actually are. If the person, subject and claim are the same, the plea of lis alibis pendens will most likely be successful. If the merits are similar but not identical, one may instead opt for connection of cases. Ultimately, the measure adopted to determine the similarity or otherwise of the two cases is at the discretion of the Court.

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The Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, is the foundation of the procedure used by our Courts in civil cases. At its core, it provides for how, when, and where applications and replies are filed, how hearings are conducted, how witnesses testify, and fundamentally, how the procedural timeline of a case filed before our courts will progress from start to finish. In the past few days, two Bills were presented to Parliament, both of which seek to amend Chapter 12 of the Laws of Malta. They each tackle a specific area of civil procedure, and endevour to make it reflect present realities and solve current problems faced by our courts.

Bill no. 168 of 2020

Bill no. 168 will officially allow for one to be virtually present in court through live video conferencing links. This can be done in any cause – either by application of one of the parties, or even through the court’s own motion. This procedure is triggered as follows: after hearing representations from the parties, the court may direct that any party of witness in a location which is not the court itself (the ‘remote location’) is to be treated as being actually present in court. This can be the case for the entirety of the proceedings or even proceedings which are incidental to the main proceedings.

The fact that the Court can declare this ex officio and need not rely on the application of one of the parties shows an inclination on the part of the legislator to reduce the number of people present in the courtroom. In the present Covid-19 circumstances, this seems like a necessary step, with the long-term effects of this measure on the efficiency of court proceedings yet to be seen.

This does not mean that such a system does not present new challenges. One may argue that the ‘theatre’ and perhaps even the intimidation of the courtroom is precisely what prompts witnesses to testify truthfully, and that the testimony of a witness may vary when he or she is testifying from the comfort of his or her own home or office.
The Bill caters for these challenges, by providing for certain safeguards.

The order of virtual presence through videoconferencing is not be given by the court in question unless it is satisfied that the persons in the remote location have all the necessary facilities to enable them to see and hear the court and for the court to see and hear them. Nor can the court allow the person to testify from the remote location if it would be unfair to one of the parties, or if it would be contrary to the interests of justice to do so. In the last two provisos, one perceives that the court is allowed a substantial amount of discretion in deciding whether it should give such order. When this is coupled with the fact that the court may give such order of its own motion, it is evident that the legislator seeks to allow the courts to tackle the matter on a case-by-case basis. However, if the Court in question decides not to give such order, it needs to provide its reasons for its refusal.

Bill 169 of 2020

The aim of this Bill is to primarily reduce the backlog of cases before the Court of Appeal by limiting hearings only to the cases where it considers it necessary. In view of the fact that typically, cases before our courts are based on a combination of written applications and replies, and oral hearings, conceiving a system before the Court of Appeal which eliminates oral hearings entirely is surely a drastic change. This measure will be accompanied by a reduced timeframe for the payment of security for costs in respect of appeal. These two measures seek to fast-track the proceedings as much as reasonably possible. It should be noted from the outset that this new appellate court procedure will not apply to cases before the Constitutional Court, which shall still be appointed for oral hearing. Furthermore, the Bill will apply to judgments subject to appeal which are delivered after the Bill is enacted and in force.
Bill 169 of 2020 stipulates a longer limit for the filing of appeal and replies, extending the limit from 20 to 30 days. The reason provided is that a longer limit will allow ‘written pleadings to be better prepared.’ This Bill essentially provides for an overhaul in the proceedings before appellate courts. It is thus useful to examine how the new procedure will take place, step-by-step.

All proceedings before an appellate court will be conducted in writing and the first step in the process is to file a note of appeal within 10 days from the date of the judgment appealed. This precedes the actual filing of the appeal application and is an entirely new requirement, the failure of which precludes the party from filing the appeal, rendering the judgment of the lower court res judicata. Then follows the application for appeal which needs to be filed within 30 days from the filing of the note of appeal. A reply to the appeal application needs to then be filed within 30 days. This is followed by any cross appeal and the answer thereto.

The appellant may, within 5 days of being notified of the reply, plead the court to authorise him to file a rejoinder addressing only the points of fact or law which were raised for the first time in the reply. Should the Court allow the filing of such rejoinder, it shall be filed within a period not exceeding 30 days from the date of the decree authorising the filing of the rejoinder.

Provided that the Court does not require further clarifications, this rejoinder would mark the closing of the written pleadings, following which the Court of Appeal will proceed to judgment. The security of costs for all appeals will need to be deposited by not later than 3 months from the filing of the appeal, the failure of which would render the appeal abandoned. At present, the deadline for the deposit of the security of costs must be produced and deposited at least one day before the hearing of the appeal. Given that this Bill is intended to remove oral hearings from the process, it is understandable that the legislator needs to provide a more objective timeframe for such deposit.
It is interesting to note how the Bill considers the written pleadings to be the application and reply themselves and does not provide for a note of submissions which would replace the oral hearing. This means that any application and reply filed before an appellate court need to be comprehensive to the extent that, as much as possible, no further clarifications would be required.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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Undoubtedly, the Courts of Justice are a means to resolve the worries of a troubled mind. However, for some, such worries and troubles are often augmented at the very doorstep of the Courts of Justice’s building simply because of inappropriate clothing. This leads one to wonder what truly constitutes appropriate court attire, the reason for the need of such formality, and whether such matter is merely customary or regulated by law.

Whilst common courtesy and common sense should reign supreme in determining whether a specific article of clothing is appropriate when attending court, this might not always be the case. In fact, it is almost if not daily whereby a court executive officer refuses entry into the precincts of the Courts of Justice to a person who is ‘dressed improperly’. Though frequently it is often thought that such court executive officers are exercising the power to refuse entrance arbitrarily, the authority to refuse any such persons is given to court officers by the letter of the law — more specifically under Regulation 27 of L.N. 279 of 2008.

Amongst the provisions of this Legal Notice (which gave rise to Subsidiary Legislation 12.09 entitled ‘Court Practice and Procedure and Good Order Rules’), article 27 states that: “Every court executive officer may refuse entry into the precincts of the Courts of Justice or into any courtroom to any person who, in his opinion, is not properly dressed”. This is subject to the proviso which follows, indicating that if such person, being improperly dressed, is summoned to appear before a court or tribunal, the court executives are bound to follow the instructions provided by the relevant adjudicator. While it may be labelled a controversial provision due to the wide discretion entrusted to the court executives, the following sub-article further states that: “The Director General (Courts) shall, from time to time, inform the general public as to the type of dress which is regarded as unacceptable within the precincts of the Courts of Justice”.

The latter sub-section of the law was the subject to a complaint before the Office of the Ombudsman in 2013, which initially attempted to compel the Director General of the Courts into publishing an exhaustive list of appropriate court attire. Although such exhaustive list never came into being, the Director General did however indicate that male members of the public are to wear a jacket and tie as a sign of respect and nonetheless, to maintain a sense of dignity. Until then, no indication had been given as to what female members of the public are to wear or avoid, however in later years it has been indicated that short skirts and “tight, sheer, and/or low-cut clothing of any style” are to be avoided.

The law, however, does not only set out such rules pertaining to court attire only to those summoned or those simply entering court, but also to those in the legal profession. The provision regulating court attire for advocates and legal procurators, as expected, stems from tradition. Whilst it is believed that Judges wore black as a sign of submission to Justice (as do priests in order to symbolise their sacrosanct submission to God), the lack of materials and dyes prior to this modern era also played an important part in leading legal professionals to wear black materials. Nowadays, legal professionals are not expected to wear only black colours; this measure has been relaxed by allowing the wearing of dark colours — and not specifically black. Presently, article 25 of S.L. 12.09 is construed of five sub-sections which dictate what advocates and legal procurators are expected to wear.

Before the superior courts, it states, male advocates (although the law merely indicates ‘advocates’) are to wear a “dark blue, charcoal grey or black suit or pin-striped trousers and black jacket, a white shirt with a black, grey or white tie or bow-tie and black gown”. Meanwhile, “Lady advocates (and indeed does the law state ‘Lady advocates’) appearing before the said courts shall wear black or blue or charcoal grey suits, or a white blouse and a black skirt or trousers, under a black gown”. Opining a less rigid sense of formality, it further states that advocates shall be “dispensed from the need to wear a gown” before the inferior courts. Important to note that although legal professionals are rarely refused the right to enter the court premises because of their apparel, they may, however, be refused the right of audience.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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Usually, this day attracts wide coverage.

It is a fact little known outside the legal profession that this day is not merely customary or a result of a decision of some individuals within the confinements of our law courts. It is born out of law.

Prior to the coming into force of Act XXXI of 2002, our law spoke about the ‘forensic year’ in article 120 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta. It used to state that “The Forensic Year is divided into three sessions: (a) the first is called the session of Epiphany and commences on January 7; (b) the second is called the session of Pentecost and commences on the Thursday after Easter Sunday; (c) the third is called the Victory session and commences on October 1 .

Therefore, at that time, the forensic year opened on January 7, and not in October, although the celebratory event was still held in October. This had even sparked controversy among judges and lawyers. In 2002, this article at law was repealed, and later replaced with regulation 28 of Subsidiary Legislation 12.09, which states that:

The forensic year shall commence on first October of each year and the forensic year is divided into three sessions:

(a) the first is called the Victory session and commences on the first of October;

(b) the second is called the session of Epiphany and commences on the seventh of January; and

(c) the third is called the session of Pentecost and commences on the Thursday after Easter Sunday.

Whereas traditionally, October 1st used to mark the third part of the forensic year, since 2009, this day started being formally considered as the first day of the first part of the court’s forensic year. The law provides for court vacations during each period, namely from the seventeenth of December to the sixth of January inclusively, from Wednesday in Holy Week to the Wednesday after Easter Sunday inclusively, from the sixteenth of July to the fifteenth of September inclusively. The summer vacations for the inferior courts are shorter, and shall last only through the month of August.

This does not mean that court sessions cannot be held during these periods. Indeed, it is stated by our law that the superior and inferior courts may sit on any day and at any time for reasons of urgency as decided by the court on the request or with the approval of both parties or for any other reason whatsoever as determined by the court provided that the said reason is registered in the records of the case.

This law call for an interesting discussion in respect of special summary proceedings filed under article 167 of CoCP (giljottina). There are some judgments stating that special summary proceedings filed during the vacation periods established by law lose their effectiveness as such and are to be heard in their ordinary course (vide for example, Victoria Tabone vs Daniel Orsini, 24.10.2016). There other decrees that rendered such proceedings null (vide for example, Miller Distributors Limited vs Ignatius Zammit, 28.06.2001). In its decree of 21.08.2018, in the names of Malta Stock Exchange plc vs Pefaco International plc, the Civil Court, First Hall (per Mr Justice G. Mercieca) disagreed with these courts, and stated that:

“Huwa minnu li l-proċedura taħt l-Artiklu 167 et. seq. hija waħda straordinarja; odjuża għall-konvenut billi tpoġġi d-difiża tiegħu fi żvantaġġ, u għalhekk għandha tiġi, b’mod ġenerali, tiġi segwita ad unguem u nterpretata restrittivament; u li l-Qorti għandha fil-kondotta ta’ kawżi bħal dawn tosserva ċerta kawtela sabiex ma tippreġudikax il-jeddijiet tad-difiża. B’danakollu, għal din ir-regola ġenerali, illeġislatur, permezz ta’ emenda speċifika (ara Att XXIV.1995.78), għamel eċċezzjoni fejn ikun hemm nuqqas ta’ tħaris tat-termini biex jiġi notifikat il-konvenut (“mingħajr dewmien”) u biex jidher quddiem il-Qorti (“mhux iktar kmieni minn ħmistax-il jum u mhux iktar tard minn tletin jum min-notifika”), f’liema każ il-“qorti ma għandhiex tieqaf timxi bi proċediment speċjali iżda, għandha tagħti dawk l-ordnijiet li jidhrilha xierqa biex id-drittijiet tal-partijiet ma jiġux preġudikati” (proviso għall-Art. 169 ibid.). Din il-Qorti ma tarax li hemm xi preġudizzju lil xi parti billi ttawwal il-perjodu għall-ewwel smiegħ.”

It opted to solve this quandary by simply appointing the case for hearing for a date when the court vacations would be over.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@azzopardilegal.eu.

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