MALTA Law and Practice Contributed by: Antoine Cremona, Clement Mifsud-Bonnici and Chiara Frendo, Ganado Advocates
5.4 Alternatives to Discovery Mechanisms Evidence is generally limited to that brought by the parties to corroborate their claim or defence, and must be relevant to the issue between the parties. A court may disallow evidence if it considers it irrelevant or superfluous to the cause, or if it considers that it is not the best evidence that can be brought on the issue. There are some specific rules of disclosure – for example, in the private enforcement of competition law claims in terms of the Competition Act (Chapter 379 of the laws of Malta). Moreover, as part of the enforcement of intellectual property rights, the court has wide-ranging powers to order disclosure (subject to confidentiality) and the conservation of evidence in the hands of the defendant or third parties (by vir- tue of the Enforcement of Intellectual Property Rights (Regulation) Act (Chapter 488 of the laws of Malta)). A specific procedural right exists for a party in pro- ceedings to demand the production of particular documents (actio ad exhibendum) in the following instances: • if such documents are the property of the party demanding the production thereof; • if such documents belong in common to the party demanding their production and to the party against whom the demand is made; • if the party demanding the production of the documents, although they are not the owner or a co-owner thereof, shows that they have an interest in such documents being produced by the other party to the suit; • if the person possessing the documents, not being a party to the suit, does not declare on oath that, independently of any favour for either side, they have special reasons not to produce the docu- ments; and • if the documents are public acts, or acts intended to constitute evidence in the interest of the public in general. In all cases, the party demanding the production of the document must prove that the document is in the possession of the person from whom the production is demanded.
EU member state, such plaintiff cannot be regarded as “absent” from Malta. 4.6 Costs of Interim Applications/Motions Costs of interim applications are typically reserved at the interim stage, saving the right of the court to reapportion liability for costs based on the outcome at final judgment. 4.7 Application/Motion Timeframe There is no timeframe within which an application must be dealt with, or within which proceedings must be appointed for trial. Generally, causes are appointed for a first hearing within two months of the application being made. In cases of urgency, the court may abridge any legal time and may even appoint the case for a trial before the close of preliminary written procedures. Applications for precautionary warrants, especially ex parte applications for such relief, are typically dealt with very expeditiously, and interim court decrees are obtained in a matter of hours. There is no express statutory full and frank disclosure obligation on the parties. The possibility of discovery is limited, and the disclosure of documents is gen- erally achieved through subpoenas containing very specific disclosure requests. These requests must be relevant to the subject matter of the dispute, and they should not be excessive. 5.2 Discovery and Third Parties The possibility of discovery from third parties is lim- ited. Documents are typically disclosed through sub- poenas that include precise requests for information. These requests must be relevant to the dispute and 5. Discovery 5.1 Discovery and Civil Cases
should not be overly broad or excessive. 5.3 Discovery in This Jurisdiction
As stated previously, there is no system of discovery in Malta, and no specific rules regulating which docu- ments parties must disclose.
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