Examine in the light of the Maltese Jurisprudence, discuss the role, status and distinct interest of plaintiff, defendants, joinder and intervenor in the civil action. Does the Court have any procedural duties?

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Examine in the light of the Maltese Jurisprudence, discuss the role, status and distinct interest of plaintiff, defendants, joinder and intervenor in the civil action. Does the Court have any procedural duties? Focus on the procedural possibilities and remedies available to each party considered.

The Civil Process

The civil jurisdiction is a special type of jurisdiction which has the purpose to ensure the observance of the civil law norms. The object of the protection afforded by the civil jurisdiction is the “subjective right”. This subjective right is a subjective position which can be inferred from the substantive law. That is, the civil law provides for certain rights and corresponding obligations. The right of the lessor to receive rent is a subjective right, which is conferred by the substantive civil law. At times, such rights are also conferred by the public law, for example the rules relating to public property, still fall within the competence of the civil courts.

The civil process is addressed towards the safeguard of such rules. The organs of civil jurisdiction could be divided into ordinary and special. The former deal with all sorts of proceedings, with the exception of those proceedings, of a particular nature, which are to be dealt with by ad hoc (or special) organs.

The cognition process

The ordinary cognition process is the archetype of the civil jurisdictional proceedings. It is the most complete and complex model, on which the other cognition proceedings are based. This process is referred to as being “ordinary”, as it deals with the generality of the subjective rights. Such process is distinguished from the other processes, which afford a different and/or an alternative protection.

The jurisdictional measures to which the “ordinary” cognition process is addressed are:

  1. A condemnation action, that is, a judgment through which the judge orders an individual, to do or forbear from doing something.
  2. An ascertainment action, with which the judge orders an individual not to contest the patrimony of someone else, that is to acknowledge the existence of a right pertaining to someone else, or to acknowledge the absence of a right claimed over another person’s patrimony. This judgment therefore ascertains the existence or otherwise of a right claimed.
  3. A constitutive action, through which the judge constitutes a juridical situation having a new content (such as for example the creation of a servitude of a right of way, the annulment of a defective negotium, or the rescission of a contract).

The choice between these different forms of action is made by the plaintiff, who, by means of the writ of summons, asks the court to emanate a judgment, which he (the plaintiff) deems appropriate. The writ of summons is then served onto the defendant, who is called to participate in the proceedings in order to defend his patrimony.

In the cognition process, the judge must “know” (with regard to the particular case) which is the situation “of substance”; that is he must know whether in the particular case which he has before him, there have arisen particular rights (and corresponding obligations) between the parties. This is achieved by means of “activities” which have the aim of alleging facts, collect evidence, and examine the facts within the parameters of the substantive law. The court, basing itself on its judgment will then know whether to accept the plaintiff’s claim, therefore delivering a judgment (of condemnation or of ascertainment, or a constitutive judgment) as required by plaintiff, or else dismiss it.

According to current terminology, the cognition process has for its aim the “merits” of the “cause”. That is, the judge must (through the cognition process) examine the merits of the cause and come to a conclusion based on a) his knowledge of the merits of the case and b) the manner in which the merits fit within the letter of the law. For example: the judge in an action for latent defects must examine the facts of the case e.g. whether the thing in question was really defective and whether the defect was really latent. The judge must also assess whether the defect was such as to entitle the plaintiff to institute the action (the defect must be such that he would not have bought the thing or he would have tendered a lesser price). These are questions of both fact and law, and which constitute the merits of the case. When all the relevant issues (whether of law or fact) have come to the knowledge of the judge, the latter should be in a position to deliver a judgment. Apart from the main issue of the cause (quœstio) the judge may be required to take a preliminary decision which will affect the main issue.

Furthermore, apart from the “merits” of the case, the court and the parties are also involved in procedural activities. Such procedural issues may be raised by the parties, and in certain instances may also be raised ex ufficio. Such issues (such as the competence of the court) though independent from the merits of the case, may affect the entire cause. That is, if the court decides that it is not competent to hear a particular case (this is a purely procedural issue) it will not proceed to determine the cause on the merits. In fact, it is very difficult to isolate completely the procedural aspect of a cause from its merits. In fact these two aspects are very often inter-linked and a separation is very difficult. Thus for example, one of the main questions which has to be answered, is whether a particular issue (which forms part of the merits of the case) is admissible or not (the latter is a procedural question, which depends on the nature of the issue of merit).

Civil Procedure under Maltese law is regulated by the COCP. The Code starts by illustrating the Courts of Justice.

The courts of justice of civil jurisdiction for Malta are either superior or inferior. Saving any other provision of law, the courts of justice of civil jurisdiction are exclusively vested with the judicial authority in civil matters within the jurisdiction of the tribunals of Malta.

THE SUPERIOR COURTS

The superior courts are the:

  1. Civil Court
  2. Court of Appeal; and
  3. Constitutional Court.

The inferior courts are the:

  1. Court of Magistrates (Malta);
  2. Court of Magistrates (Gozo).

General Provisions – Nullity, Legal or Judicial Times, Public Holidays, Oaths, Judicial Acts, Sessions and Vacations

Nullity of judicial acts, forms etc.

Book II of the COCP, starts by outlining certain general principles relating to the nullity of judicial acts, forms etc.

Section 98 of the COCP starts by declaring that any judicial act done in virtue or in pursuance of an act which is null, is equally null. However an act which is null may be replaced by another act, as long as the peremptory time within which the act is to be done has not elapsed. The question is, if the principal act is replaced, does the judicial act which is accessory to it become valid? Or must this be replaced too?

No person may plead the nullity of a form, of which he or his agent has been the cause. This provision prevents a person from taking advantage of his own negligence. Furthermore, it deters fraudulent conduct.

Running of legal or judicial times

Any legal or judicial time, the running of which depends on an act requiring service or publication, shall commence to run from the day on which it has been duly served or published.

Where any legal or judicial time is to be reckoned from a stated day, such day shall not be considered as included in the time itself. Where the time is to be reckoned by hours, the hour in which service is effected shall not be considered as included in the time.

In the reckoning of any time, the day is reckoned at 24 hours and the month and the year are reckoned according to the calendar. Unless, it is otherwise expressly provided, the time of 24 hours shall be deemed to expire on the following day at the hour established for the closing of the registry.

It is important to note that any legal or judicial time shall run also against the party at whose request or for whose benefit such time is allowed. Any legal or judicial time, which is not peremptory, may be extended on good cause being shown. The request for the extension of the time must be made before the expiration of the time the extension of which is sought. That is, if a period of 1 week, not being a peremptory term, is sought to be extended, the request for the extension must be made before the lapse of the1 week.

The court may, in cases of urgency, abridge any legal time and to order that an act be carried into execution from one day to another, from one hour to another or forthwith.

Court sittings are to be held from Monday to Friday of every week, during the time established for the opening of the registries of the court and during such other time as the court may fix. In certain circumstances, in case of urgency or for other reasons deemed sufficient by the court, the court may by special order, require that a sitting shall be held on Saturday s, on public holidays, or on Wednesday or Thursday of Holy Week.

A judicial act may be served or carried into execution from Monday to Saturday of every week and during the times mentioned in section 280(1), i.e. between 6.00 a.m. and 8.00 p.m. Any judicial act may be served or carried into execution on any other day or at any other time, if there is a special order of the court or if there is an order given in writing by the registrar in cases of urgency. If service is to be effected by officers of the post office, such service can only be made on such days and times during which such officers are called for duty in accordance with the rules of the post office.

Oaths

Every court and every judge or magistrate shall have power to administer oaths. In the case of a witness professing the Roman Catholic faith, the oath shall be administered according to the custom of those who belong to that faith. In all other instances, the witness shall be sworn in the manner which he considers most binding on his conscience. An oath is in all cases to be taken personally by the party to be sworn.

The acts of the court

The acts of every court shall be accessible to all persons and copies thereof shall be given out at the request of any person. However no original act may be given out to any advocate, legal procurator, litigant or other person not employed in the courts. The court may however order otherwise, for any purpose connected with the cause or for any other just reason.

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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 ...

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