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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Pet lovers can agree that the best medicine at the end of a long day, week, month (or even your year!) is coming home to the unconditional love of your pet, but what feels worse than having a bad day is seeing our furry creatures suffer in situations where we can be of little or no help to them, and when medicine and treatment are not the answer.

Maltese Law witnessed the introduction of Subsidiary Legislation 439.17 entitled the ‘Emergency Euthanasia of Animals Regulations’ in June 2015, which was enacted with the scope of implementing national measures in the context of the emergency euthanasia of animals that have been victims of an accident in public places that prevents their transport for welfare reasons, to spare any avoidable pain, distress or suffering to the animal.

This piece of Subsidiary Legislation comes after the Minister of Veterinary Services was empowered to make regulations specifying the circumstances in which it shall be permissible to kill animals, the manner in which this can take place and the person by whom they may be killed.

To start, the term ‘emergency euthanasia’ is defined by the Regulations as the killing of animals which are injured, in severe pain or suffering and where there is no other practical possibility to alleviate this pain or suffering. The applicability of the Regulations, according to Article 3 of the same Regulations, is limited to emergency situations in public places or other spaces in the Maltese territory which may require euthanasia on the spot, which situations consist in the: (1) profuse and continuous bleeding (severe haemorrhage) where the animal would have lost more than an estimated 3% of its weight, (2) serious open wounds which may result in the prolapse of visceral organs, (3) orthopaedic/musculoskeletal traumas and lesions which would be either causing severe pain or suffering or would not allow the animal to stand in an upright position, (4) loss of consciousness and (5) any other situation, not specified by the Regulations, where animals can become uncontrollable and thus represent an increased risk to the health and safety of humans.

The first four limbs of this provision outline the emergency situations in which euthanasia of the animal may take place, if required, for medical reasons of an urgent nature. Meanwhile, the last limb on the basis of which euthanasia may take place if required is where the animal represents a threat to the health and safety of humans, the merits of which shall be discussed by the undersigned in another series of this article.

Upon the occurrence of one of the emergency situations mentioned in points (1) to (4) above, the veterinarian called on site must determine the level of pain and suffering of the animal which will deliver the verdict on whether to euthanise the animal to relieve it of its suffering. Where the animal is not found by the veterinarian in one of the terminal conditions mentioned in points (1) to (4) above, and therefore euthanasia of the animal is not required and can be avoided, the veterinarian may issue the necessary instructions to move the animal to a safer place to carry out treatment.

The Regulations distinguish between an ‘official’ veterinarian and a ‘private’ veterinarian. The former refers to a veterinary surgeon who is employed by the State as a veterinary officer, whereas the latter refers to a veterinary surgeon who exercises and performs private veterinary activities. Irrespective of whether the veterinarian taking the decision to perform the euthanasia is an official or private veterinarian, he/she must be registered in the Veterinary Surgeons’ Register as required by Article 43 of the Veterinary Services Act, shall carry the responsibility for the emergency euthanasia of the animal and shall ensure that the animal is clinically dead before disposing of the body.

It is made clear in the Regulations that the decision to euthanise an animal by the veterinarian concerned shall be final, implying that the owner of the animal concerned does not have a say in the decision to euthanise the animal should the grounds mentioned above persist. Furthermore, any person, especially the owner of the animal, ought not to obstruct the official or private veterinarian in the performance of his functions in accordance with these Regulations, as otherwise he/she may be facing criminal proceedings against him/she punishable by a fine, penalty and/or imprisonment.

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Chapter 16 of the Laws of Malta, hereinafter referred to as the Civil Code, regulates the choice of surnames for spouses upon entering marriage as well as the choice of surnames for any children which are to be born subsequent to the marriage. At present, following remarkable amendments which entered into force in 2020 by means of amendment act number LXV of 2020, article 4 (1) of the Civil Code now provides various options to both spouses who wish to depart from the so to say “traditional” practice of having one and the same surname for both spouses and children.

In order to illustrate such options in an easily comprehensible manner, let’s take an example of two spouses with the following surnames: Spouse A: Borg and Spouse B: Vella.

The first option available to Spouse A and Spouse B upon entering marriage is the choice of adopting either of their surnames for both of them; practically meaning that Spouse A and Spouse B may decide for both to go by either the surname Borg or otherwise by the surname Vella.

The second option which Spouse A and Spouse B might decide to adopt involves the joining of both their surnames in their own order of preference, which double-barrelled surname would be the surname of both spouses as well as that of any children born thereafter. Therefore, in our scenario, Spouse A and Spouse B may both adopt the surname Borg Vella, or otherwise Vella Borg.

When both spouses fail to agree on a common surname for both of them in accordance with the aforementioned options, the subsequent three choices are available to either one of the spouses.

Either of the spouses may decide to adopt the surname of the other spouse, after which that particular spouse may add his or her surname. Keeping with Spouse A and Spouse B as our examples, in this scenario, Spouse A may decide to retain the surname Borg, whilst Spouse B deciding to adopt a double-barrelled surname of Borg Vella. This can also work the other way around with Spouse A deciding on the latter surname option of Vella Borg, and Spouse B retaining the surname Vella.

Another option similar to the one in the afore involves one spouse retaining his/her own surname following which the surname of the other spouse may be added. In our example this would mean that whilst Spouse A retains the surname Borg, Spouse B decides to adopt the double-barrelled surname Vella Borg. This can also work the other way round, with Spouse B retaining the surname Vella, and Spouse A adopting a double barrelled surname Borg Vella.

The last available option is quite straight forward wherein both spouses retain their own surnames. In such an example Spouse A retaining the surname Borg and Spouse B retaining the surname Vella.

In all three of these scenarios, the spouses would hold different surnames from one another. Therefore, what will happen to the children born from this wed-lock? Which surname would they come to adopt?

In these circumstances, upon their marriage or union, the spouses would have to determine a family-name which would be used for the spouses’ children. Determining such a family name would have to be in line with either of the first two options delineated in article 4 (1), meaning that the spouses would have to choose either one of their surnames (prior to their marriage or union) to be the family-name, or otherwise to choose a double-barrelled surname, in whichever order they prefer, to be the surname to be adopted by any descendants. In our situation, Spouse A and Spouse B hold the following choices: either choosing the surname Borg or the surname Vella as the ‘family-name’  or otherwise the double-barrelled surnames Borg Vella or Vella Borg as the family-name.

One must also keep in mind that in either of all the available options discussed, the combination of the spouses’ surnames shall not result in a surname which is longer than the combination of four surnames and when the surname of any one or both of the spouses already has a combination of two or more surnames, the order of the surname of that spouse shall be retained, and the spouses shall not change such order and, or drop any part of their own surname.

The provisions of this article are not limitedly applicable to those spouses who marry or enter into union after the 29th of December 2020, but shall also be applicable to those spouses who married in Malta before such date provided that any changes that they might wish to make to their surnames are affected by the 29th of December 2025.

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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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This past week’s power-cuts have spiked countless daily conversations and debates between ordinary residents and business owners alike interested in seeking compensation from Enemalta plc due to the long hours they are suffering without electricity supply.

A   sale  or  a  service  provided or concluded  between a trader and a consumer, in Malta or Gozo shall be deemed to be transactions falling within the competence of the consumer claims tribunal.

That is indeed what a gentleman did in April 2022.  He filed a claim before the Consumer Claims Tribunal (CCT 60/22/MM) for the amount of Eur 62 representing the loss of products he held in his fridge and freezer due to a 20 hour long power-cut between the 4th and 5th August 2021.

The claimant even presented a breakdown of the expenses he claimed, however despite the discomfort he undoubtably suffered in the sweltering summer heat, he did not claim any moral damages.

Enemalta plc claimed that during the time of the claim there had been several ‘high tension faults’ all over Malta and that Enemalta plc was not to blame. It claimed that in terms of article 8 of Chapter 536 of the Laws of Malta it was not responsible for damages.

Enemalta’s engineer and manager had also explained that  generally when a problem occurs in the main cable, Enemalta plc relies on a secondary cable, and on such date concerning the consumer’s claim, the secondary cable could not handle the load. Consequently repairs took over a day and this was not in its control and neither was it avoidable.

Limitations to Enemalta’s liability

Enemalta’s liability is limited by means of article 8 of Chapter 536 of the Laws of Malta, which states:

“A distribution system operator shall not be liable for any loss or damage, whether material or consequential, to any person or property, for any cessation of the supply of energy, which may be due to unavoidable accident, fair wear and tear or overloading due to unauthorised connection of apparatus, or to the reasonable requirements of the electrical system, or to the defects in any electrical installation not provided by the distribution system operator.”

The maximum amount one can claim before the Consumer Claims Tribunal

As of July 2023, the Consumer Claims Tribunal can hear consumer claims which involve the purchase or hire of goods by a consumer from a trader, or for the provision of services by a trader to a consumer in the value of up to €10,000 instead of €5,000. If the value of the claim exceeds €10,000 a claimant may only pursue the claim before the consumer claims tribunal if they declare that the amount of the claim which is in excess of €10,000 is being abandoned.

Is the consumer restricted to the Consumer Claims Tribunal?

The Consumer Claims Tribunal does not have exclusive jurisdiction, and it remains the consumer’s option whether to bring an action against a trader before a tribunal or before the ordinary courts.

Compensation for pain, distress and inconvenience

The Tribunal may, when determining the issues in dispute in any claim or counter-claim before it, order the trader to pay to the consumer a sum of not less than thirty-five euro (€35) and not more than five hundred euro (€500) as moral damages for any pain, distress, anxiety and inconvenience.

Concluding remarks by the Consumer Claims Tribunal (CCT 60/22/MM)

In this particular case, the CCT considered that this incident could not be avoided and thus it rejected the claimants’ claim for Eur 62 representing his fridge and freezers goods, while basing itself on article 8 of Chapter 536 of the Laws of Malta.

The Summer 2023 Power-Cuts

This certainly leaves consumers asking more questions as they wonder whether they will be continuing their favourite book under candle-light tonight.

Have the Summer 2023 power-cuts been avoidable? Is Enemalta still relying on the secondary cable which could not handle the load during those 20 hours in Summer 2021? If it has, have these power-cuts been avoidable this time round? Could the high-tension faults have been predicted given the rising number of consumers in Malta and Gozo?

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‘Interdiction’ and ‘incapacitation’ are regulated by Article 189 of the Civil Code and Articles 520-527 of the Code of Organisation and Civil Procedure (COCP). A person over the age of eighteen years with a mental disorder or other condition which renders him incapable of managing his own affairs, or is insane or prodigal, may be declared interdicted or incapacitated by a Court order following a demand to that effect requested by any of the persons listed in Article 521 of the COCP, effectively prohibiting the person concerned from performing certain acts.

A “mental disorder” for the purpose of these provisions shall have the same meaning assigned to it in the Mental Health Act, where it is defined as “a significant mental or behavioural dysfunction, exhibited by signs and/or symptoms indicating a disruption of mental functioning, including disturbance in one or more of the areas of thought, mood, volition, perception, cognition, orientation or memory which are present to such a degree as to be considered pathological in accordance with internationally accepted medical and diagnostic standards.” The phrase “other condition” in the present context is defined in the Civil Code as a “long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder one’s full and effective participation in society on an equal basis with others.”

What is the difference between interdiction and incapacitation?

Upon reading Article 189 of the Civil Code, one immediately identifies the absence of a clear-cut distinction between the notions of interdiction and incapacitation, so much so that Article 189 of the Civil Code deals with the two notions in a concurrent fashion, as can be seen below:

189. (1) A major who is a person with a mental disorder or other condition, which renders him incapable of managing his own affairs, or who is insane or prodigal, may be interdicted or incapacitated from doing certain acts, as provided in articles 520 to 527 inclusive, of the Code of Organization and Civil Procedure.

Generally speaking, where a demand for interdiction is not adequately substantiated by the person making the demand, the Court may order the incapacitation of the person concerned, if the circumstances give rise to incapacitation. The notion of incapacitation is found in Article 524(1) of the Code of Organisation and Civil Procedure, which reads as follows:

524. (1) If no sufficient cause for the interdiction is made to appear, it shall be lawful for the court by a decree to order, if the circumstances of the case so require, that the person whose interdiction is demanded be incapacitated from suing or being sued, from effecting any compromise, borrowing any money, receiving any capital, giving a discharge, transferring or hypothecating his property, or performing any act other than an act of mere administration, without the aid of a curator to be appointed in the same decree.

It may be concluded from the above provisions that the difference between interdiction and incapacitation is one relative to the general extent of incapacity, which conclusion is further corroborated by sub-article (2) of Article 524 cited above.

(2) It shall also be lawful for the court, if it deems it necessary, to incapacitate any person from performing all or any of the acts of mere administration, entrusting the performance thereof to a curator in such manner as the court may deem fit to direct.

The above implies that even the notion of incapacity is subject to different decrees, so much so that incapacitation may be extended or limited, at the Court’s discretion, depending on the circumstances.

In these situations, the Court shall appoint a curator to administer the property of the person interdicted for a maximum term of three years. Said appointment can be renewed, if the court considers it appropriate, after evaluating the yearly sworn reports submitted by the curator.

The difference between interdiction and incapacitation, in fact, also emerges in the duties of their respective curators. For instance, while the curator of an interdicted person administers the patrimony of the interdicted person in its entirety, the curator of an incapacitated person merely assists the incapacitated person in the administration of his assets. Throughout the period of incapacitation, therefore, an incapacitated person retains control of his assets, contrary to a person interdicted.

A demand for interdiction or incapacitation as stated above shall take the form of an application to be filed in the registry of the Court of Voluntary Jurisdiction. It must contain a statement of the facts on which the demand is based and a list of witnesses that are able to confirm those facts. Any documents supporting the demand must also be enclosed with the application.

In terms of Article 251 of the COCP, the demand may be made (1) by a spouse against the other spouse, (2) by any person against another person related to him by consanguinity and (3) by any person against another related to him by affinity and who may be called upon to supply maintenance to such other person. The interdiction or incapacitation of any person incapable of managing his own affairs owing to a mental disorder or other condition may also be demanded by the State Advocate, unless the demand has already been put forward by any other person as stated above.

Interdiction or incapacitation is to take effect from the day of the relative decree of the Court of Voluntary Jurisdiction, and as a result, any act performed by the person interdicted or incapacitated following said decree shall be null. While any act performed prior to the interdiction or incapacitation is not automatically null, it may be annulled, if the cause of interdiction or incapacitation existed at the time of the said act.

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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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Today is the 14th of February. Many will celebrate Saint Valentine’s Day by giving chocolate, cards, and roses.

But who was the real Valentine and what does he have to do with law?

The legend of St Valentine’s started with one young priest deliberately breaking a law, that enacted by Roman Emperor Claudius II. During his reign, Claudius had decided that single men made better soldiers, for they could focus better. So, he outlawed marriage for young men.

But Valentine would not have it, and continued performing wedding ceremonies in secret.

It is said that Emperor Claudius eventually discovered everything, had Valentine arrested and sentenced to death. During his time in prison, Valentine fell in love with his jailer’s daughter, who used to visit him in prison. It said that prior to his execution, he had signed off a letter to the girl with “from Your Valentine”.

Valentine was martyred on the 14th of February, 270 AD.

Today, a similar blanket marriage ban is unlikely to survive a human rights challenge. In fact, article 12 of the European Convention on Human Rights provides that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

There is still a margin of appreciation for states to exercise; but the general rule is, marriage bans are discouraged. Certainly, the right to marry is subject to national laws on marriage, including those that make marriage illegal between certain types of people (for example, close relatives), but any restrictions must not be arbitrary and not interfere with the essential principle of the right.

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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 at carlos@azzopardilegal.eu.

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The Christmas of 1843 was part great and part horrible for the good old Charles John Huffam Dickens, commonly known as Charles Dickens. On one end, he published the ever so famous ‘Christmas Carol’, selling out six thousand copies in just one week. On the other hand, Dickens was immediately a victim of pirated editions, aided by the often complete lack of international copyright regulation and England’s reluctance to enforce copyright laws in general. He ended up spending more money in legal battles than he was making from the book itself.

Today, copyright laws are much tighter, and it is unlikely for modern authors to face the same holiday misfortunes.

This anecdote is evident of an irrefutable fact: Law literally affects everything, even Christmas.

The Game Act 1831 was an Act of Parliament in the United Kingdom which was passed to protect game birds by establishing a close season when they could not be legally taken. It is an offence to kill or take any game, or use any dog, gun, net or other engine or instrument for the purpose of killing or taking any game, on a Sunday or on Christmas Day. If one is to indulge in excessive meaty food, he is to acquire the food on a different day.

In fact, it is often stated that there was one Christmas in which eating mince pies was illegal, since it fell on a legally-mandated day of fasting.

A request for waiver of this rule was sternly refused by English Parliament:

“Whereas some doubts have been raised whether the next Fast shall be celebrated, because it falleth on the day which heretofore was usually called the feast of the Nativity of our Saviour. The Lords and Commons in Parliament assembled doe order and ordaine that publique notice be given that the Fast appointed to be kept on the last Wednesday in every moneth ought to be observed until it be otherwise ordered by both Houses of Parliament: And that this day in particular is to be kept with the more solemn humiliation, because it may call to remembrance our sinnes, and the sinnes of our forefathers, who have turned this Feast, pretending the memory of Christ into an extreame forgetfulness of him, by giving liberty to carnall and sensual delights, being contrary to the life which Christ himself led here upon earth, and to the spiritual life of Christ in our souls for the sanctifying and saving whereof Christ was pleased both to take a human life, and to lay it down again.”

One would also be advised to proceed with caution before ringing doorbells and sing carols, for it is illegal (even under Maltese Law) to ring the bell of any other person’s house or building, or to, at night time, disturb the repose of the inhabitants by rowdiness or bawling, or in any other manner.

In England, back in the 17th century, Puritan laws required that stores and businesses remain open all day on Christmas, and town criers walked through the streets on Christmas Eve calling out “No Christmas, no Christmas!” They believed Christmas was used as an excuse for drunkenness, promiscuity, gambling and other forms of excess.

A Popular Royalist ballad written in 1646 fully captured the feeling at the time:

“To conclude, I’ll tell you news that’s right,
Christmas was killed at Naseby fight:
Charity was slain at that same time,
Jack Tell-truth too, a friend of mine,
Likewise then did die, roast beef and shred pie,
Pig, Goose and Capon no quarter found.
Yet let’s be content, and the times lament,
you see the world turned upside down.”

On the Restoration of King Charles II in 1660, the traditional celebration of Christmas was also fully restored.

Malta, being predominantly Catholic, hardly ever faced any attempts from law makers to ban anything Christmas, for very few would even dare to prohibit catholic celebrations of any kind. The mass reaction of the Maltese people in year 1798 when the French attempted to restrict Catholic practices is a good enough deterrent.

However, Christmas Day does not continue to be without regulation, but these times it is to ensure that the day may continue to be celebrated. The first court vacation (on the end of what is known as the Victory session) starts on the seventeenth of December to the sixth of January inclusively. The 25th of December is officially a paid public holiday (Chapter 252 of the Laws of Malta), and the 26th December of this year is officially declared to be a bank holiday (Subsidiary Legislation 371.07). Catering establishments are normally permitted to open until 1:00am, but may remain open for business until 4.00 a.m. of the morrow on Carnival days, Easter Saturday, Christmas Eve and New Year’s Eve.

Today, the law seeks not to prohibit Christmas, but rather to promote it, as long as things are done in moderation. Indeed today, our law is very harsh on drunk drivers, and this rightly so.

So enjoy these holidays, but do not drink and drive. Ultimately, Christmas will always be as long as we stand heart to heart and hand in hand.

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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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In Malta, the 17th of December is the feast day of the Catholic patron saint of lawyers, this being Yves Helory de Kermartin, traditionally known to us as Sant’Ivo. Why this is the celebrated date it is not really known, since really and truly, he is commonly and widely celebrated on the 19th of May all around the world.

Be it as it may, every December 17, lawyers take off their togas, and convene together outside the law courts, and away from the daily hustle and bustle of the courtrooms, to celebrate together a year of hard work.

Sant’Ivo was born in Kermartin, near Tréguier, Brittany (today a part of France), on the 17 October, 1253 and died at Louannec, on the 19th May, 1303. Sant’Ivo was the son of a nobleman and from a well to do family. He first studied civil law and later canon law and was learned thereon. It is said that among his classmates were the likes of Duns Scotus and Roger Bacon.

He also studied theology and is said to have also joined the Third Order of Saint Francis, being what in Maltese we might call a ‘terzjarju’, although he was later ordained to the priesthood too. Due to his charitable disposition, he became known as the advocate of the poor, especially since he represented the helpless and paid for their expenses in court. He also visited those he assisted in prison. All this presumably as higher acts of charity rather than out of professional duty and diligence.

He was above all an incorruptible diocesan judge, refusing the bribes that were the order of the day, and working to settle claims out of court in order to save the litigants time and money.

Sant’Ivo was also an ecclesiastical judge, and that might also be why certain sources also describe him as a patron saint for jurists, magistrates and judges as well.

He was known as ‘the Honest Lawyer’, (a surprising moniker, one must admit) so much that he is the subject of an amusing piece of doggerel found on his tomb in Tréguier Cathedral in Côtes-d’Armor, France, reads: Sanctus Ivo erat Brito Advocatus et non latro Res miranda populo (‘St. Ives was from the land of beef, A lawyer, and not a thief; A stretch on popular belief’).

The words of another Catholic saint of our period, Saint John Paul II highlight the greatness of Sant’Ivo:

“St Ivo was involved in defending the principles of justice and equity. He was careful to guarantee the fundamental rights of the person, respect for his primary and transcendent dignity, and the protection that the law must guarantee him. For all who exercise a legal profession, whose patron saint he is, he remains the voice of justice, which is ordained to reconciliation and peace in order to create new relations among individuals and communities and build a more impartial society. I give thanks for the shining example he offers to Christians today, and on a broader scale, to all people of good will, inviting them to walk on paths of justice, of respect for the law and of solidarity with the poor, to serve the truth and to take part in “a new “creativity’ in charity”.”

On this day, may all lawyers get the rest they deserve, and may they all follow the example of Sant’Ivo during the exercise of their profession.

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