MALTA Law and Practice Contributed by: Antoine Cremona, Clement Mifsud-Bonnici and Chiara Frendo, Ganado Advocates
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 limited. Documents are typically disclosed through subpoenas that include precise requests for information. These requests must be relevant to the dispute and should not be overly broad or excessive. 5.3 Discovery in This Jurisdiction As stated above, there is no system of discovery in Malta, and no specific rules regulating which 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 con- siders 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 competi- tion law claims in terms of the Competition Act (Chapter 379 of the Laws of Malta). Moreover, as part of the enforcement of intellectual property (IP) 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 virtue of the Enforcement of Intellectual Property Rights (Regulation) Act (Chapter 488 of the Laws of Malta)). documents parties must disclose. 5.4 Alternatives to Discovery Mechanisms A specific procedural right exists for a party in proceedings to demand the production of par-
ticular 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 pro- duced 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 documents; 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. 5.5 Legal Privilege There is a privilege pertaining to advice and communications between a client and their law- yer in professional confidence and these can- not 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 correspond- ence exchanged on a “without prejudice” basis in furtherance of a compromise.
920 CHAMBERS.COM
Powered by FlippingBook