MALTA Law and Practice Contributed by: Antoine Cremona, Clement Mifsud-Bonnici and Chiara Frendo, Ganado Advocates
5.5 Legal Privilege There is a privilege pertaining to advice and commu- nications between a client and their lawyer in profes- sional confidence and these cannot be disclosed in court. There is no distinction between external and in-house counsel. 5.6 Rules Disallowing Disclosure of a Document Certain specified documents are privileged, and their production during proceedings cannot be made. This would include documents which are subject to legal privilege but also correspondence exchanged on a “without prejudice” basis in furtherance of a compro- mise. Documents that would damage the security, defence, or international relations of Malta, or that would divulge information or matters communicated in confidence by or on behalf of a foreign government, authority or international organisation, would also be considered privileged documents. Specific documents relating to the cabinet’s government are also considered privi- leged documents. Moreover, the courts have discretion to restrict the public nature of cases or of pieces of evidence in the interests of justice (such as court disclosure of bank- ing documents or other confidential documents). There have been court decrees protecting documents containing trade secrets or confidential information, but the circumstances will vary depending on case- specific facts or depending on whether or not specific legislation applies (for example, private enforcement proceedings issued under the Competition Act). 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief The acts referred to in 4.1 Interim Applications/ Motions are the injunctive relief available in terms of Maltese civil procedural law.
6.2 Arrangements for Obtaining Urgent Injunctive Relief In urgent circumstances, interim injunctions can be issued provisionally, and even on the same day of the request. Exceptionally, they are even issued out-of- hours, as is very common in the case of arrests of sea vessels and aircraft. 6.3 Availability of Injunctive Relief on an Ex Parte Basis See 6.1 Circumstances of Injunctive Relief . Ex parte injunctive relief is in fact obtained without the defendant being able to make submissions, although the application is served on the defendant. The corresponding protection for the defendant is the possibility to request the removal of injunctive relief on very limited grounds or, exceptionally, to seek coun- tersecurity. This system ensures the effectiveness of injunctive relief, including the element of surprise, but also creates a balance in case of abusive recourse to injunctive relief. Admittedly, however, court judgments have unduly limited the availability of the counterse- curity or the application for the removal of injunctive relief by interpreting very strictly the instances where such remedies may be available. 6.4 Liability for Damages for the Applicant Plaintiffs will be responsible for damages suffered by the defendant if it is shown that: • the proceedings were frivolous or vexatious; • the plaintiff sought more security than they were reasonably entitled to; or • the plaintiff fails to file an action on the merits within the set timeframe established by law follow - ing the grant of injunctive relief. In some instances, plaintiffs may need to provide security for such damages. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Worldwide asset relief is not possible under Maltese law.
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