by Dr Carlos Bugeja – Senior Associate
Every year on this day (1 October), members of the judiciary, lawyers and legal procurators gather, and a celebratory sitting is held at Hall 22 at the Maltese Courts of Justice in Valletta, to mark the ‘opening’ of the Forensic year.
As always, this year, this day attracted wide coverage.
It is a fact little known outside the legal profession that this day is not merely customary or a result of a decision of some individuals within the confinements of our law courts. It is born out of law.
Prior to the coming into force of Act XXXI of 2002, our law spoke about the ‘forensic year’ in article 120 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta. It used to state that “The Forensic Year is divided into three sessions: (a) the first is called the session of Epiphany and commences on January 7; (b) the second is called the session of Pentecost and commences on the Thursday after Easter Sunday; (c) the third is called the Victory session and commences on October 1 .
Therefore, at that time, the forensic year opened on January 7, and not in October, although the celebratory event was still held in October. This had even sparked controversy among judges and lawyers. In 2002, this article at law was repealed, and later replaced with regulation 28 of Subsidiary Legislation 12.09, which states that:
The forensic year shall commence on first October of each year and the forensic year is divided into three sessions:
(a) the first is called the Victory session and commences on the first of October;
(b) the second is called the session of Epiphany and commences on the seventh of January; and
(c) the third is called the session of Pentecost and commences on the Thursday after Easter Sunday.
Whereas traditionally, October 1st used to mark the third part of the forensic year, since 2009, this day started being formally considered as the first day of the first part of the court’s forensic year. The law provides for court vacations during each period, namely from the seventeenth of December to the sixth of January inclusively, from Wednesday in Holy Week to the Wednesday after Easter Sunday inclusively, from the sixteenth of July to the fifteenth of September inclusively. The summer vacations for the inferior courts are shorter, and shall last only through the month of August.
This does not mean that court sessions cannot be held during these periods. Indeed, it is stated by our law that the superior and inferior courts may sit on any day and at any time for reasons of urgency as decided by the court on the request or with the approval of both parties or for any other reason whatsoever as determined by the court provided that the said reason is registered in the records of the case.
This law call for an interesting discussion in respect of special summary proceedings filed under article 167 of CoCP (giljottina). There are some judgments stating that special summary proceedings filed during the vacation periods established by law lose their effectiveness as such and are to be heard in their ordinary course (vide for example, Victoria Tabone vs Daniel Orsini, 24.10.2016). There other decrees that rendered such proceedings null (vide for example, Miller Distributors Limited vs Ignatius Zammit, 28.06.2001). In its decree of 21.08.2018, in the names of Malta Stock Exchange plc vs Pefaco International plc, the Civil Court, First Hall (per Mr Justice G. Mercieca) disagreed with these courts, and stated that:
“Huwa minnu li l-proċedura taħt l-Artiklu 167 et. seq. hija waħda straordinarja; odjuża għall-konvenut billi tpoġġi d-difiża tiegħu fi żvantaġġ, u għalhekk għandha tiġi, b’mod ġenerali, tiġi segwita ad unguem u nterpretata restrittivament; u li l-Qorti għandha fil-kondotta ta’ kawżi bħal dawn tosserva ċerta kawtela sabiex ma tippreġudikax il-jeddijiet tad-difiża. B’danakollu, għal din ir-regola ġenerali, illeġislatur, permezz ta’ emenda speċifika (ara Att XXIV.1995.78), għamel eċċezzjoni fejn ikun hemm nuqqas ta’ tħaris tat-termini biex jiġi notifikat il-konvenut (“mingħajr dewmien”) u biex jidher quddiem il-Qorti (“mhux iktar kmieni minn ħmistax-il jum u mhux iktar tard minn tletin jum min-notifika”), f’liema każ il-“qorti ma għandhiex tieqaf timxi bi proċediment speċjali iżda, għandha tagħti dawk l-ordnijiet li jidhrilha xierqa biex id-drittijiet tal-partijiet ma jiġux preġudikati” (proviso għall-Art. 169 ibid.). Din il-Qorti ma tarax li hemm xi preġudizzju lil xi parti billi ttawwal il-perjodu għall-ewwel smiegħ.”
It opted to solve this quandary by simply appointing the case for hearing for a date when the court vacations would be over.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@abalegal.eu.