Perhaps the most common measure adopted by governments worldwide over the past two years has been, quarantine.

As a result of such a forceful measure, millions of people at some point or another are forced to remain confined to their homes either due to a positive swab test result or due to their close contact with someone who tested positive for coronavirus.  This measure has left several consequent ripple effects especially on employers and employees.

With employees being restricted to their homes on a daily basis, the novel of “quarantine leave” was introduced.

According to Subsidiary Legislation 452.101, quarantine leave is “leave to be granted to the employee without loss of wages in such cases where the employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health under the Public Health Act or by any public authority under any other law.”

Therefore, quarantine leave is not available to those who out of their own will decide to self-isolate but is only available to those who have received a formal letter by the authorities ordering them to quarantine. Additionally, the novelty of this concept is also remarked due to the fact that quarantine leave is not meant to serve as a replacement to paid vacation leave or sick leave, but is a new form of leave entitlement altogether.

Interesting are the interplays between sick leave and quarantine leave. If an individual tests positive for Covid-19, then that particular individual is to be considered as sick – therefore being entitled to sick leave from his/her employer. A similar system applies to individuals who although having initially tested negative for Covid-19, would have tested positive during their period of quarantine. When the illness terminates, if the person is ordered to remain in quarantine, then the quarantine leave regime will apply. Conclusively, only people who test negative for Covid-19 and are ordered by the Superintendent of Public Health or other authorities to remain in quarantine are eligible to avail themselves of quarantine leave, whereas those who test positive for Covid-19 avail themself of their sick leave entitlement.

The remarkable feature of this definition lies in the fact that whilst an employee is availing himself of quarantine leave, that employee has his mind at rest that he will not suffer any deduction in his wage.

The Maltese legislator has created a scenario wherein a person who tests negative for Covid-19 but is nonetheless ordered to quarantine, is afforded full protection of his wages. Yet, opposingly a person who is ordered to quarantine for testing positive for Covid-19, is not entitled to the same sort of protection.

The entitlement to sick leave is regulated under Regulation 3 of Subsidiary Legislation 452.101 which caters for a stipulated period available to an employee as sick leave for which the employee is entitled to receive his full wages. Therefore, if one considers a scenario wherein an employee avails himself of his full sick leave entitlement, and subsequently contracts Covid-19, the employee may find himself in a position wherein he does not qualify for quarantine leave and would have to avail himself of further sick leave which may result in loss of wages.

The post THE LETTER OF THE LAW: Sick Leave vs Quarantine Leave appeared first on Arthur Azzopardi & Associates.

In March 2020, Legal Notice 72 of 2020, entitled ‘Enforcement of Directions relating to Quarantine (Amendment) Regulations, was published. This Legal Notice sought to revise the pecuniary punishment to be imposed on persons who fail to adhere to COVID-19 measures including any obligatory quarantine periods. Since the coming into force of this Legal Notice, any person who fails to adhere to such measures and/or any obligatory period of quarantine is guilty of an offence and liable to the payment of a penalty of three thousand Euro (€3,000) for each and every occasion that the quarantine period is breached. For clarity’s sake, Regulation 2 of Legal Notice 72 of 2020 holds as follows:

“Any person who fails to abide by the provisions of these regulations shall be guilty of an offence and shall, on conviction, be liable to the payment of a penalty of three thousand euro (€3,000) for each and every occasion that the quarantine period is breached.”

The oddity behind this provision revolves on the term ‘penalty’ and this was precisely the issue that led to the acquittal of the defendant in a tribunal hearing before the Commissioner of Justice which took place on the 27^th of April 2021. This decision, in the names of ‘LESA v. Mario Attard’, could very well create a ripple or domino effect on future tribunal cases with comparable merits and grounded on the same charges.

The afore-cited Regulation 2 of Legal Notice 72 of 2020 makes it amply clear that it is creating a criminal offence. An offence in Malta can either take the form of a ‘crime’ or alternatively a ‘contravention’. In terms of Article 7 of the Maltese Criminal Code, the pecuniary punishments that may be meted out for crimes and contraventions respectively are a fine (multa) and a fine (ammenda). The question therefore remains; the term penalty – used in Regulation 2 of Legal Notice 72 of 2020 – falls under which category of punishment? Is it a fine (multa) of a fine (ammenda)?

To this day, this remains a mystery. What is certain, however, is that nowhere in the Maltese Statute book is the concept of penalty recognised as a punishment that may be meted out for a finding of guilt and this in itself creates legal uncertainty.

In the afore-cited case of ‘LESA v. Mario Attard’ the defendant argued that since the term penalty is not under Maltese law recognised as a form of pecuniary punishment awardable for offences, the fundamental principle of nulla peona sine lege – literally implying ‘no penalty without a law’ – safeguarded by both article 39(8) of the Maltese Constitution and Article 7 of European Convention of Human Rights (ECHR), was violated.

The Commissioner for Justice upheld this plea and proceeded to acquit the defendant Mario Attard.

What changes to the law this decision is set to bring forth, is yet to be seen.

Paralegal Jacob Magri assisted the defendent before the Commissioner of Justice.

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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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L.N. 141 of 2020 had clearly defined the legal and judicial terms which are to be suspended under the Primary Act, i.e. Chapter 609 of the Laws of Malta, entitled; the Legal and Other Time Periods (Suspension and Interruption) Act.

Prior to the introduction of L.N. 203 of 2020, which entered into force today, regulation 3(1)(c) of L.N. 141 of 2020 used to cater for the suspension of the running of any time period imposed or agreed upon in any private writing or public deed, including time periods set and agreed upon for the performance of obligations.

L.N. 203 of 2020 has however added the words “excluding a registered promise of sale agreement” immediately after the words “private writing” under regulation 3(1)(c). L.N. 203 of 2020 has also substituted the words “including a registered promise of sale agreement” with “excluding a registered promise of sale agreement” under regulation 3(4)(e).

L.N. 207 of 2020, on the other hand, amended L.N. 75 of 2020 in a similar manner. The words “and any expiration of any term in any promise of sale agreement duly registered in terms of law with the Commissioner of Revenue within the period established by law shall be suspended whilst the order for closure is in force without the need of any signatures or formal renewals by the parties” – as found in regulation 3(1) of L.N. 75 of 2020, shall be removed.

This implies that both L.N. 203 of 2020 and L.N. 207 of 2020 have the same effect, i.e. that the running of any time period imposed on registered promise of sale agreements shall no longer remain suspended.

Importantly however, both L.N. 203 of 2020 as well as L.N. 207 of 2020 included a new regulation to L.N. 141 of 2020 and L.N. 75 of 2020 respectively, to clarify that the suspension of any term as in force before their entry into force, in so far as it regards the performance of obligations relating to a registered promise of sale agreement and the expiration of a promise of sale duly registered shall remain in force for twenty days after the date of entry into force of L.N. 203 of 2020 and L.N. 207 of 2030, i.e. for twenty days after the 22nd of May 2020.

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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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