MALTA Law and Practice Contributed by: Antoine Cremona, Clement Mifsud-Bonnici and Chiara Frendo, Ganado Advocates
should be upheld, and the facts. The letter must warn the debtor that if they do not contest the claim within 30 days from service, then the judicial letter will con- stitute an executive title, without the need for a trial. Maltese procedural law also provides for special sum- mary proceedings in certain instances, particularly when a claim is solely for the recovery of a debt that is certain, liquid, and due (and which falls within the jurisdiction of the Superior Courts), or for the eviction of a person from an urban or rural tenement. In these cases, the plaintiff may request, in its sworn application, that the court proceeds to give judgment without proceeding to trial. The sworn application must contain a sworn declaration that the plaintiff believes that there is no defence to the claim. If, at the hearing, the defendant does not make an appear- ance or fails to satisfy the court that they have a prima facie defence to the action on the merits, the court will proceed to give judgment in summary proceedings. 4.3 Dispositive Motions Prospective defendants may ask for a case to be dis- missed before a full trial, most commonly in the fol- lowing instances: • where there is a lack of juridical interest of either the plaintiff or the defendant; • where they allege a cause of nullity in the proce- dure followed by the plaintiff; • where they allege a lack of jurisdiction; • where the matter has already been decided by another judgment (res judicata) or otherwise com- promised/settled; or • where the action is barred by a particular prescrip- tive period established at law. In these instances, the court may hear and decide such defences or pleas first without delving into a full trial. These motions typically take the form of pre- liminary pleas raised in the sworn reply (statement of defence). 4.4 Requirements for Interested Parties to Join a Lawsuit Any interested party who shows, to the satisfaction of the court, that they have an interest in a pending suit,
may file an application to be admitted as a party to the suit (in statu et terminis). An application to inter- vene may be made at any stage of the proceedings, whether in first or second instance, provided that such application does not suspend the actual proceedings between the parties to the suit. Alternatively, anyone with an interest in the proceed- ings may be joined by application of either party or by court decree, when their absence would render the judgment less effective. While intervention in statu et terminis is voluntary, the intervenor does not become a full party to the suit, with the result that the judgment will not be binding over them. 4.5 Applications for Security for Defendant’s Costs While the Code of Organisation and Civil Procedure caters for a request made by the respondent for an order on the applicant to give security for the costs of the suit, this is limited to those instances where the applicant is expressly required to give such secu- rity at law. Such instances would include security for costs by the appellant in appellate proceedings, by the applicant in intellectual property cases, and in cases for the enforcement of mortgages on ships and aircraft. Furthermore, it has been common practice for spe- cial attorneys to be appointed to represent absent plaintiffs in lawsuits instituted in Malta. The appoint- ment of a special attorney has the practical effect of rendering that attorney personally responsible for the acts performed in the course of the proceedings on behalf of the mandator. Consequently, the attorney bears personal liability for any costs or obligations that may arise from such acts, thereby providing an additional safeguard to the opposing party. That said, recent judgments have relaxed this traditional approach. The courts have clarified that there is no legal requirement for a plaintiff to be physically present in Malta throughout the entirety of court proceedings. Instead, these decisions hold that the lawyer rep- resenting the plaintiff is to be deemed the plaintiff’s tacitly appointed special attorney for the purposes of the proceedings. Moreover, the courts have affirmed that where the plaintiff is resident or registered in an
671 CHAMBERS.COM
Powered by FlippingBook