An act requiring the signature of a judge or magistrate shall be signed by the judge or magistrate of the respective court. Where the court consists of more than one judge or magistrate, the signature of one suffices.
Notwithstanding the above, any judge may give the requisite directions upon any ex parte application filed in any contentious matter in any of the superior courts, and may sign any warrant to be issued under the authority of any of the said courts.
The forensic year is divided into three sessions. Each session includes a period of vacation. No sittings are to be held during the vacations except for the hearing of –
- Any cause which in view of its nature may require an urgent trial;
- Any cause the trial of which may have commenced before the vacations, unless the parties have applied for an adjournment to a day after the last day of the vacations; and
- Appeals from judgments of the Court of Magistrates (Malta) or the Court of Magistrates (Gozo) in its inferior jurisdiction;
- Any sitting for the trial of any other cause, if an application to that effect is made by both parties and the court deems it expedient to allow the request.
The vacations shall not bar the issue or execution of any warrant, whether executive or precautionary.
Of the Ordinary Mode of Procedure in Contentious Matters
General Provisions
In the superior courts and in the Court of Magistrates (Gozo) in its superior jurisdiction, proceedings are ordinarily instituted by writ of summons (citazzjoni) or application (rikors), as provided by law. On the other hand in the Court of Magistrates (Malta) and in the Court of Magistrates (Gozo) in its inferior jurisdiction, proceedings are instituted only by writ of summons.
Save as is otherwise provided by the COCP or by any other law, the mode of procedure before an appellate court is by application. The application shall contain the prayer that the judgment appealed from or any part thereof be reversed or varied.
Contents of an application of appeal
The application for reversal of a judgment shall contain:
- A reference to the claim and to the judgment appealed from;
- The detailed reasons on which the appeal is entered and
- A request that the said claim be allowed or dismissed.
The application for variation of a judgment shall contain:
- A reference to the claim and to the judgment appealed from;
- A statement which distinctly points out the heads of the judgment complained of;
- Detailed reasons for which the appeal is entered and
- In conclusion, a statement which specifically illustrates, the manner in which the judgment be varied under each head.
The application for reversal, annulment or variation of a decree (not a judgment) shall contain a reference to the contents of the decree appealed from, together with detailed reasons for such reversal, annulment or variation.
Section 143 (4) points out that:
- A request for reversal shall be deemed to include a request for annulment and variation of the judgment or decree.
- A request for annulment shall be deemed to include a request for a reversal and variation of a judgment or decree.
Failure to observe the above rules relating to the contents of an application for the reversal or variation of a judgment or the reversal, annulment or variation of a decree, shall not entail the nullity of the application. The court shall (therefore it has no discretion) in any such case, make an order directing the appellant to file, within two days, a note containing such particulars as are required by law and which have not been duly stated in the application. The cost for the order and of the filing of the note shall be borne by the appellant.
An appeal may be entered by any party against all the other parties or against any one of them. The appellant shall indicate in the application of appeal the parties against whom the appeal is directed. The application shall be served on all parties, but only the parties against whom the appeal is directed shall, within the time of 20 days, file their respective answer containing the reasons why the appeal should be dismissed.
In the case of a cross appeal the party against whom the cross appeal is directed shall within the said time of 20 days file a reply rebutting the allegations included in the cross appeal.
All documents in support of the demand or defence shall be produced together with the answer or reply.
The written pleadings in appeal shall be deemed to be closed, by the answer to the application, or, in default, on the expiration of the time allowed for such answer. Where in the case of a cross appeal, a reply is allowed, the written pleadings shall be deemed to be closed by the reply, or, in default, on the expiration of the time allowed for such reply.
Where any party fails to file an answer or reply within the prescribed time limits, he shall not be precluded from appearing before, or making submissions to, the court during the hearing of the appeal.
The court may in certain instances, whenever under the circumstances, it shall deem it expedient to do so, make an order allowing any of the parties to file an additional written pleading. The opposite party may, if he so desires file another written pleading in reply, within such time as the court will direct. If however, no time is fixed by the court, the party allowed to file such additional written pleading shall do so within 10 days from the order. The other party shall file his answer within an equal time to be reckoned from the service of the former written pleading. Such times may be extended only once on good ground being shown.
Procedure by application for appeal
Application (rikors)
Parties against whom the appeal is directed must file an answer within 20 days
Reply filed within 20 days OR Reply not filed within 20 days
Cases in which the production of documents is permitted outside the prescribed time.
Section 145 of the COCP provides that all documents in support of the demand or defence shall be produced together with the answer or reply. Section 150 provides a list of 6 instances in which the production is still allowed notwithstanding the lapse of the prescribed time. The list is exhaustive, since section 150 states that “…production shall only be allowed” –
- if, notwithstanding all due diligence, the document could not be obtained before the filing of the pleading with which it should have been produced. Furthermore, it is essential that the filing of the pleading could not have been delayed without prejudice. If there is no such prejudice, there is no valid excuse at law for not having waited until it was possible to file the document; or
- if the court is satisfied of the necessity or expediency of having the document before it. It is provided that in any such case, the court may, in adjudging the costs of the cause, take into account the tardy production of the document; or
- if the opposite party, by a separate note, or by an annotation in the margin or at the foot of the note by which the document is produced, gives his consent thereto; or
- if it is proved, by oath or otherwise, that the party producing the document, had not been aware of it, or could not, with the means provided by law, have produced it, in due time; or
- if the document to be produced is a book or other paper in the original, copies whereof or extracts wherefrom, relating to the matters at issue, were produced in due time; or
- before any referee, if bearing on the subject-matter of his reference.
Any necessary demand concerning any collateral issue shall, however, be allowed at any stage of the cause, as occasion may require.
The registrar is to note down, in a book kept for the purpose (called a cause book), those causes the written pleadings of which are closed. The causes are listed according to the order of the date on which the written pleadings were closed. The registrar is to publish, as soon as possible, such causes in the list of causes set down for hearing. The registrar is to follow the same order of the cause book. The registrar is to indicate that such causes are being set for trial for the first time, and shall also cause the parties to be served with a notice of the day appointed by the court for the hearing of the case. The proviso to section 152(1) provides that any of the parties may, by means of a note filed in the registry of the court, exempt the registrar from the duty of service of such notice.
The notice to the parties is to be made by summons. If there is no service (and there has not been an exemption in terms of the proviso to section 152(1)) the registrar must within 10 days inform in writing the advocate of such party that the notice has not been served. The advocate is to sign a copy of the receipt of such communication. It is assumed that the advocate is in a better position to communicate with his client, this explains the registrar’s duty. However, no action is available against the lawyer for failure to inform any such party.
Even though the hearing of a cause is to follow the order established in the aforementioned list of causes published by the registrar, the court can, if there is a just cause, order the hearing of a cause the written pleadings whereof have been closed, irrespective of its turn.
Any one of the parties fails to file any written pleading which he was entitled to file, may still appear at the hearing of the cause and produce his evidence. Such party must however show to the satisfaction of the court a good reason for such default.
TITLE II THE MODE OF PROCEDURE BY WRIT OF SUMMONS
Proceedings by writ of summons
Section 154(1) of the COCP provides that a procedure is said to be by writ of summons, when the Court issues or gives an order to a party to appear before it on the day and the hour appointed, in order to show cause why the claim contained in the writ of summons should not be allowed.
Form and contents of the writ of summons
The writ of summons is to be made in writing (presumably this is why it is called a writ) and must comply with the prescribed form. The writ of summons is to be prepared by the plaintiff and must contain the following:
- a clear and correct statement of the subject-matter and the cause of the claim;
-
the claim or claims, which shall be numbered.
Production of documents: Any documents which may be necessary to support the claim, are to be produced together with the writ of summons.
Section 156(3) provides that when an action is filed before the superior courts, further requirements must be satisfied. In such a case, the plaintiff or one of the plaintiffs, must, moreover file together with the writ of summons a declaration with numbered paragraphs containing all the facts relevant to the cause and describing each fact in separately numbered paragraphs, in support of his claim, stating also which facts are within his knowledge. Such a declaration shall either be confirmed on oath before the registrar or be accompanied by an affidavit of the plaintiff or one of the plaintiffs confirming all the facts in support of the claim and stating which facts are within his knowledge. A copy of such declaration and of such affidavit is to be served on the defendant together with the writ of summons.
The plaintiff shall together with the declaration, also give the names of the witnesses he intends to produce in evidence stating in respect of each of them the facts and proof he intends to establish by their evidence.
Section 156(5) provides that where several actions are brought together in terms of section 161(3)(4) and (5) at least one of the plaintiffs shall file a declaration which shall be confirmed on oath before the registrar, or shall be accompanied by his affidavit, and the provisions of section 156(3) shall apply. A copy of such declaration and of such affidavit is to be served on the defendant together with the writ of summons.
The registrar is bound not to receive any writ of summons which is not accompanied by such declaration and such affidavit if any (as is mentioned in the two above cases, i.e. sections 156(3) and (5)).
Furthermore the court shall not allow (it has no discretion in this matter) any witness to be produced unless his name shall have been given together with the writ of summons. The court may however allow the production of a witness even though his name was not given together with the writ of summons:
- where the necessity of producing a witness arises at any time after the filing of the writ of summons;
- the opposite party gives his consent by a separate note; check because 150(1)(c) is more detailed than this;
- if the court deems it in the interest of justice to hear a particular witness.
Service of the writ of summons
It is the plaintiff’s responsibility to cause through the registrar (not personally) a copy of the writ of summons and of the declaration and of any affidavit (the originals are to be kept by the registrar) to be served on the defendant.
Statement of defence and note of admission, filing etc.
Section 158(1) of the COCP states that the defendant must file his statement of defence within 20 days from the date of service; unless he intends to admit the claim. The effective date from which the 20 have to be reckoned is the date of service. The date of filing is inappropriate for such a purpose, especially since at times a considerable period of time could pass between the filing and the service of the writ. Where the defendant intends to admit the claim wholly and unconditionally, he must not only refrain from filing the statement of defence within the 20 day limit, but he must also file a note to this effect. If he does not intend to admit the claim wholly and unconditionally, he must file the aforementioned statement of defence. This is to include:
- any such pleas as would be taken to be waived if not raised before the contestation of the suit (i.e. those pleas which must be necessarily raised before the contestation of the suit);
- a clear and correct statement of the pleas on the merits of the claim or claims without reference to authorities. This last requirement, “without reference to authorities” suggests that the statement of defence should be as concise as possible, and that a more detailed exposition of the defence pleas should only take place at a later stage of the proceedings.
The defendant (or one of the defendants where there are 2 or more defendants) shall moreover, file together with the statement of defence, a declaration with numbered paragraphs containing all the facts concerning the claim, denying, admitting or explaining the circumstances of fact set out in plaintiff’s declaration, stating which facts are within his knowledge. Such a declaration shall be confirmed on oath before the registrar, or else shall be accompanied by an affidavit of the defendant or one of the defendants, on all the facts concerning the claim, denying, admitting or explaining the circumstances of fact set out in plaintiff’s declaration. The defendant shall also confirm in the affidavit which facts stated therein are within his knowledge. The defendant shall also give the names of the witnesses he intends to produce in evidence, stating in respect of each of them the facts and the proof he intends to establish by their evidence. Together with the statement of defence there shall be filed all such documents as may be necessary in support of the pleas. These duties essentially mirror those which have to be satisfied by the plaintiff in the filing of the writ of summons.
As in the case of a writ of summons, the registrar shall not receive any statement of defence which is not accompanied by the aforementioned declaration or affidavit. Furthermore the court shall not allow any witness to be produced whose name shall not have been given in such declaration. As in the case of the writ of summons the court may allow such a witness to be heard:
- where the necessity of producing a witness arises at any time after the filing of the writ of summons;
- the opposite party gives his consent by a separate note; check because 150(1)(c) is more detailed than this;
- if the court deems it in the interest of justice to hear a particular witness.
When the proof intended to be established by each witness is not stated at all or is not adequately stated in the declaration, the court shall on the first day appointed for the pretrial hearing order the plaintiff to indicate adequately the proof he intends to establish by each of the witness within a time to be fixed by the court.
Where the defendant is absent or is a minor or a person incapable according to law or a vacant inheritance, and is represented by an attorney or a curator, then, instead of the declaration referred to above, a declaration may be made (it is therefore optional) to the effect that the facts of the case are unknown and that it has not been possible to obtain the necessary information to contest the claim. Non-compliance with this provision may be taken into account by the court in applying section 223(3) of the COCP. The latter section provides that in all cases, it shall be lawful for the court to order that the costs shall not be taxed as between party and party, when either party has been cast in some of the points at issue, or when the matter at issue involves difficult points of law, or where there is any other good cause.
Simultaneously with the filing of the note admitting the claim, or of the statement of defence and declaration (as the case may be) the defendant shall cause an identical copy thereof, certified by himself or his advocate, to be served through the registry on the plaintiff or his advocate.
If the defendant makes default in filing the statement of defence and the declaration stating the facts, as mentioned above, the court shall give judgment as if the defendant failed to appear to the summons, unless he shows to the satisfaction of the court a reasonable excuse for his default in filing the statement and declaration within the prescribed time. The court shall (it has no discretion in this issue, because of the importance of the principle audi alteram partem and the fundamental human right to fair hearing), however, before giving judgment allow the defendant a short time which may not be extended within which to make submissions in writing to defend himself against the claims of the plaintiff. Such submissions shall be served on the plaintiff who shall be given a short time within which to reply. It is important to note that the law is granting to the defendant the opportunity to defend himself, notwithstanding the fact that he failed to file the statement of defence and the declaration within the time specified by law. The law is giving utmost priority to the defendant’s fundamental human right to a fair hearing.
The statement of defence may be amended, after the conclusion of the evidence of the plaintiff and before the defendant produces his evidence. The amendment is made by means of a separate statement either withdrawing any of the pleas set up or adding new pleas, saving those pleas which may be set up at any stage of the proceedings.
With the filing of the statement of defence, or on the expiration of the 20 days within which such statement of defence should be filed, whichever is the earlier, the preliminary written proceedings shall be deemed to be closed. At this point the provisions of sections 151 and 152 of the COCP apply. Thus, the registrar is to note down, in a book kept for the purpose (called a cause book), those causes the written pleadings of which are closed. The causes are listed according to the order of the date on which the written pleadings were closed. The registrar is to publish, as soon as possible, such causes in the list of causes set down for hearing. The registrar is to follow the same order of the cause book. The registrar is to indicate that such causes are being set for trial for the first time, and shall also cause the parties to be served with a notice of the day appointed by the court for the hearing of the case. The proviso to section 152(1) provides that any of the parties may, by means of a note filed in the registry of the court, exempt the registrar from the duty of service of such notice.
The notice to the parties is to be made by summons. If there is no service (and there has not been an exemption in terms of the proviso to section 152(1)) the registrar must within 10 days inform in writing the advocate of such party that the notice has not been served. The advocate is to sign a copy of the receipt of such communication. It is assumed that the advocate is in a better position to communicate with his client, this explains the registrar’s duty. However, no action is available against the lawyer for failure to inform any such party.
Even though the hearing of a cause is to follow the order established in the aforementioned list of causes published by the registrar, the court can, if there is a just cause, order the hearing of a cause the written pleadings whereof have been closed, irrespective of its turn.
Notwithstanding the above, even where the court has appointed a day for the trial of the case before the time allowed for the filing of the statement of defence in accordance with section 158 (i.e. 20 days from the date of service of the plaintiff’s writ of summons upon the defendant), the defendant shall file the statement of defence and declaration not later than the time at which the case is first heard. He may also file them before the court at such hearing and serve a copy thereof on the plaintiff by delivering a copy to him or to his advocate at the same hearing.
The writ of summons and the statement of defence are not to contain comments or superfluous matter. The writ of summons and the statement of defence, must be in summary form, and except for a reference to law, they may not contain any comment or any matter which is not necessary for a statement of the material facts as regards the writ of summons and for a rebuttal of those facts or for an indication of the pleas as regards the statement of defence. The law is stressing the importance of concision which must be used when preparing the writ of summons and the statement of defence.
In the case of non-compliance with the above, the court may order any superfluous matter to be struck out, or the written pleading to be removed from the record and replaced by another made in accordance with the requirements of concision and precision specified above.
Section 160 of the COCP provides that any party intending to produce a witness in any proceedings before any court may, together with the writ of summons or the statement of defence (as the case may require) file in the registry of such court an affidavit taken by such witness before a judicial assistant or any other person authorized by law to administer oaths. A copy of such affidavit shall be served on the other party.
OF THE ORDINARY MODE OF PROCEDURE IN CONTENTIOUS MATTERS AS APPLIED TO THE RESPECTIVE COURTS.
Mode of procedure in the Civil Court, First Hall and in the Court of Magistrates (Gozo) in its superior jurisdiction
In the First Hall Civil Court, and in the Court of Magistrates (Gozo) in its superior jurisdiction, proceedings are ordinarily taken by writ of summons (citazzjoni). Proceedings may also be taken by application (rikors) in the cases prescribed by or under a law.
Two or more plaintiffs may (it is not mandatory) bring their actions by one writ of summons or one application (as the case may be) if the actions are connected in respect of the subject matter thereof, or, if the decision of one of the actions might affect the decision of the other action or actions, and the evidence in support of one action is, generally, the same to be produced in the other action or actions. This avoids an unnecessary reproduction of proceedings in which the same evidence is produced. However, it would seem that where different evidence is to be produced, 2 or more plaintiffs do not have a right to bring their actions by one writ of summons or one application. Does the requirement of same evidence have to be met in either instance or only in the last one? The cause and subject matter of the actions shall be clearly and specifically stated in respect of each plaintiff.
Section 161(4) provides that, nevertheless, any of the actions so brought together shall be tried separately at the request of a plaintiff with regard to his action. The court may also order that any action be tried separately when it is not expedient that the actions of all the plaintiffs be tried together. Any such order may be made at any stage of the proceedings before the final judgment. Thus any plaintiff may decide to have a separate trial for his action for no reason in particular. It would seem that the court may decide to separate an action ex ufficio only where it is expedient to do so. Where the several actions are brought together they shall be taken cumulatively for the determination of the competency of the court. It is evident that no connection of actions is possible where the competency of the court varies from one action to another. Such court shall remain competent in respect of any action which is separated in accordance with section 161(4).
Nullity of proceedings
Saving the provision of section 175 of the COCP nullity shall ensue if proceedings which should have been instituted by writ of summons or by application of appeal are instituted by any other judicial act.
However, no nullity shall ensue if a cause which should have been instituted by application is instituted by writ of summons. The court may however order the plaintiff to substitute the writ of summons by an application. Any additional costs incurred shall be borne by the plaintiff. It would seem that if an action should have been instituted by writ of summons and an application is used instead, the action would be null. However nullity shall ensue, where proceedings are to be instituted by application in accordance with any other law not being the COCP, and another judicial act is employed.
Leave to file written submissions
It shall be lawful for the court, on the case being closed, at the request of either of the parties, to grant leave for filing, within a time to be fixed by the court, a written pleading containing a summary of his submissions. This is only permissible where the other party does not show that such leave would cause a delay to his prejudice. Where such leave is granted to either of the parties, the opposite party shall be entitled to file in reply another written pleading within a time equal to that which shall have been fixed by the courts aforesaid, to be reckoned from the day of the service of the written pleading for the filing of which the court shall have granted leave.
Special Summary Proceedings
In actions within the jurisdiction of the superior courts or the Court of Magistrates (Gozo) in its superior jurisdiction, where the demand is solely –
- for the recovery of a debt, certain, liquidated and due, not consisting in the performance of an act; or
- for the eviction of any person from any rural tenement, with or without a claim for ground rent, rent or any other consideration due or by way of damages for any compensation, up to the date of the surrender of the tenement,
it shall be lawful for the plaintiff to pray in the writ of summons that the court gives judgment allowing his demand, without proceeding to trial. The plaintiff shall in the declaration in terms of section 156(3) state that in his belief there is no defence to the action. Furthermore, the plaintiff may also file a sworn affidavit of any other person, containing facts relative to the claim, and confirming that such facts are within the knowledge of such a person. In this manner the plaintiff would be producing evidence in support of his claim, bye-passing at the same time the trial.
The writ of summons in this case shall be in writing according to the prescribed form and shall contain an order to the defendant to appear before the court, on an appointed day and at a stated time. The provisions of section 156 (1) (2) & (3) and of section 159 shall apply to such writs of summons. Section 156(1) provides that the writ of summons is to be prepared by the plaintiff and must contain the following:
- a clear and correct statement of the subject-matter and the cause of the claim;
- The claim or claims, which shall be numbered.
Any documents which may be necessary to support the claim are to be produced together with the writ of summons.
Section 156(3) provides that when an action is filed before the superior courts, further requirements must be satisfied. In such a case, the plaintiff or one of the plaintiffs, must, moreover file together with the writ of summons a declaration with numbered paragraphs containing all the facts relevant to the cause and describing each fact in separately numbered paragraphs, in support of his claim, stating also which facts are within his knowledge. Such a declaration shall either be confirmed on oath before the registrar or be accompanied by an affidavit of the plaintiff or one of the plaintiffs confirming all the facts in support of the claim and stating which facts are within his knowledge.
Section 159 of the COCP refers to the requirement of concision in preparing the writ of summons (already mentioned).
Service on defendant
A copy of the declaration of any affidavit and of the note of the documents produced with the writ of summons shall be served upon the defendant, together with the writ of summons.
Time for service of writ of summons
In the case of special summary proceedings, the writ of summons shall be served on the defendant without delay; and he shall be ordered to appear not earlier than 15 days and not later than 30 days from the date of service. In the case of non-observance of such times, the court shall not stop proceedings by special summary proceedings but shall give such orders as it may consider appropriate so that the rights of the parties be not prejudiced.
Mode of service
The writ of summons, the declaration and any affidavit and note produced therewith, and any order (to appear within the specified time in the case of special summary proceedings, as mentioned in the preceding paragraph) shall be served by means of any executive officer of the courts.
Trial in special summary proceedings
If –
- the defendant fails to appear to the writ of summons, or
-
if he appears and does not impugn the proceedings taken by the plaintiff, on the ground of irregularity or inapplicability, or
-
having unsuccessfully raised such plea, does not by his own sworn evidence, or otherwise, satisfy the court that he has a prima facie defence, in law or in fact to the action on the merits, or
- otherwise disclose such facts or issues of law as may be deemed sufficient to entitle him to defend the action or to set up a counterclaim,
the court shall forthwith give judgment, allowing the plaintiff’s claim.
If on the other hand the defendant impugns the proceedings on the ground of irregularity, or inapplicability, or satisfies the court that he has a prima facie defence to the action, or discloses such facts or issues of law as may be deemed sufficient to entitle him to defend the action or to set up a counterclaim, he shall be given leave to defend the action and file a statement of defence within 20 days from the date of the order giving leave to defend. In such a case the defendant shall comply with the provisions of section 158 (which refers to the Statement of defence and note of admission, filing etc. above) so far as applicable. Where leave to defend is given, the action shall be tried and determined, on the same acts, in the ordinary course as provided in the COCP. The order to defend is to be made orally, however a record thereof must be kept in the proceedings.
Mode of procedure in the inferior courts
Section 171 of the COCP provides that, in the Court of Magistrates (Malta) and in the Court of Magistrates (Gozo) in its inferior jurisdiction, proceedings shall be by writ of summons which shall take the form of a mere notice (avviz) signed by the registrar. Such writ of summons shall contain:
- the name and surname of the plaintiff and of the defendant;
- the demand of the plaintiff;
- And the day and hour where the defendant is to appear.
The cause shall be summarily heard in terms of section 215. The latter section provides that the Court of Magistrates (Malta) and the Court of Magistrates (Gozo) in its inferior jurisdiction shall proceed summarily and with the utmost despatch consistent with the due administration of justice. Such courts shall comply with the provisions contained in Title V of Part I of Boom II of the COCP insofar as such provisions may be consistent with the manner of proceeding of the said courts as aforesaid.
Without prejudice to section 23 of the COCP, in the said courts, the judgment need not contain all the reasons thereof. Instead it may merely list the main points upon which the court would have based its conclusions.
Section 172 lays down that where a reversal or variation of any judgment delivered by the Court of Magistrates (Malta) or by the Court of Magistrates (Gozo) in its inferior jurisdiction, is sought, proceedings shall in all cases be taken by application. The application as well as any other subsequent act may even be signed by the appellant or by the respondent only. Section 173 states that (1) the court may, in order to ensure full compliance with all matters of procedure, or to seek more detailed information, or to expedite proceedings or to avoid the unnecessary appearance of parties or witnesses, give in camera all such orders and directives it may think fit, and it shall be sufficient that such orders or directives be communicated by the registrar even by letter to the advocates or legal procurators of the parties or to the parties themselves. This provision shall apply to any stage of the proceedings before judgment is delivered. An appeal from such orders or directives, where admissible, may be entered only after the definitive judgment and together with an appeal from such judgment, and such orders or directives may not be challenged before the definitive judgment is delivered.
Without prejudice to the foregoing provisions of article 172(1), the court may, at any stage of the proceedings –
- either on its own motion or on an application by any party to the proceedings, direct that the evidence of any person intended to be produced as a witness be taken before a judicial assistant at such place and time under such conditions as may be specified in the order;
-
on an application by any party to the proceedings, desiring to confirm a fact stated in the application, or in a note accompanying it, by the affidavit of a person named by the party, order the person so named to appear for that purpose before a judicial assistant at such place and time as may be specified in the order.
-
In the case of an order given under sub article (2)(b), the judicial assistant shall ask the person named whether he confirms or denies each fact specified in the application or note and shall make a record of the replies given together with any other statement, if any, qualifying his reply, and cause such record to be confirmed on oath by the person aforesaid. The judicial assistant shall insert the affidavit in the records of the case and cause a copy thereof to be served on the parties.
-
When an application as in referred to in sub-article (2)(b) is filed together with any written pleading referred to in article 160, the Court may direct that the service of such written pleading shall be suspended for such period, not exceeding three months, as the court may determine.
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Taken from Enciclopedia del Diritto.
Such as for example the Rent Regulation Board.
Provvedimenti giurisdizionali.
Accertamento positivo, the judge determines the existence of the other party’s right.
Accertamento negativo, the judge determines the absence of the right claimed.
The merits are subdivided into questions of law and questions of fact.
The opening times of the registry are determined by the Minister responsible for justice. However the registry may be opened, by special order of the court or by order given in writing by the registrar (see footnote 8), be opened for the filing of judicial acts an any day or at any time.
The registrar may refuse to give an order in writing only if he has referred the matter to the competent court for its decision.
Witnesses or other persons required to take the oath shall swear to tell the truth, the whole truth and nothing but the truth. Referees shall swear faithfully and honestly to perform the duties assigned to them.
Section 240(1) of the COCP provides that any party may avail himself of an appeal entered from a judgment, including a partial judgment and from a head or heads of any judgment, or from any interlocutory decree and may enter a cross appeal not only in respect of the judgment, partial judgment, head or heads of any judgment or interlocutory decree appealed from, but even in respect of any judgment or heads thereof or interlocutory decrees given in the same cause even if not appealed from by the appellant. Such a cross appeal may be made even against or by any party not being one against whom a cross appeal is directed (in terms of 144(1)).
Written pleadings are deemed to have been concluded by the answer to the application.
Even though no answer is filed, the written proceedings are deemed to have been closed upon the lapse of the 20 day period. This however does not exclude the party who did not file the answer from apearing before, or making submissions to, the court during the hearing of the appeal.
In the appointment of such day, allowance shall be made for the time required for the preliminary written procedures of the case to be closed. However, in urgent cases the Court may appoint a day for the trial of the case before the close of the preliminary written procedures.
When the proof intended to be established by each witness is not stated at all or is not adequately stated in the declaration, the court shall on the first day appointed for the pretrial hearing order the plaintiff to indicate adequately the proof he intends to establish by each of the witness within a time to be fixed by the court.
These provisions deal with the possibility of 2 or more plaintiffs to bring their actions by one writ of summons or by one application (as the case may be) if the actions are connected in respect of the subject matter thereof or if the decision of one of the actions might (the mere possibility suffices) affect the other/s and the evidence in support of one action is, generally, the same to be produced in the other action/s.
That is each, of the parties is to pay its share of the tax.
The Maltese text reads, “meta kull wahda mill-partijiet tkun telliefa f’xi punt tal-kawza.”
These two sections have already been dealt with earlier. I have copied the relevant parts here too.
This section provides for the power of the court to order or permit the amendment of the written pleading. This section shall be dealt with later on.
This applies only for proceedings instituted in accordance with the COCP.
Section 156(3) provides that when an action is filed before the superior courts, further requirements must be satisfied. In such a case, the plaintiff or one of the plaintiffs, must, moreover file together with the writ of summons a declaration with numbered paragraphs containing all the facts relevant to the cause and describing each fact in separately numbered paragraphs, in support of his claim, stating also which facts are within his knowledge.
These have been already been considered, but shall be repeated for clarity’s sake.
The defendant may make his submissions to impugn the proceedings taken by plaintiff on the ground of irregularity or inapplicability by means of a note to be filed in the registry of the court or during the hearing.
The judgment shall be delivered in public. The court delivering the judgment shall read out the operative part which is to be included in the concluding part of the judgment. The operative part of the judgment shall include a reference to the claims or pleas which have been decided upon and every declaration intended to be conclusive or binding. Immediately upon delivery the judge or magistrate shall deposit a signed transcript of the judgment in the records of the case.