By Celine Cuschieri Debono – Paralegal
The Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, is the foundation of the procedure used by our Courts in civil cases. At its core, it provides for how, when, and where applications and replies are filed, how hearings are conducted, how witnesses testify, and fundamentally, how the procedural timeline of a case filed before our courts will progress from start to finish. In the past few days, two Bills were presented to Parliament, both of which seek to amend Chapter 12 of the Laws of Malta. They each tackle a specific area of civil procedure, and endevour to make it reflect present realities and solve current problems faced by our courts.
Bill no. 168 of 2020
Bill no. 168 will officially allow for one to be virtually present in court through live video conferencing links. This can be done in any cause – either by application of one of the parties, or even through the court’s own motion. This procedure is triggered as follows: after hearing representations from the parties, the court may direct that any party of witness in a location which is not the court itself (the ‘remote location’) is to be treated as being actually present in court. This can be the case for the entirety of the proceedings or even proceedings which are incidental to the main proceedings.
The fact that the Court can declare this ex officio and need not rely on the application of one of the parties shows an inclination on the part of the legislator to reduce the number of people present in the courtroom. In the present Covid-19 circumstances, this seems like a necessary step, with the long-term effects of this measure on the efficiency of court proceedings yet to be seen.
This does not mean that such a system does not present new challenges. One may argue that the ‘theatre’ and perhaps even the intimidation of the courtroom is precisely what prompts witnesses to testify truthfully, and that the testimony of a witness may vary when he or she is testifying from the comfort of his or her own home or office.
The Bill caters for these challenges, by providing for certain safeguards.
The order of virtual presence through videoconferencing is not be given by the court in question unless it is satisfied that the persons in the remote location have all the necessary facilities to enable them to see and hear the court and for the court to see and hear them. Nor can the court allow the person to testify from the remote location if it would be unfair to one of the parties, or if it would be contrary to the interests of justice to do so. In the last two provisos, one perceives that the court is allowed a substantial amount of discretion in deciding whether it should give such order. When this is coupled with the fact that the court may give such order of its own motion, it is evident that the legislator seeks to allow the courts to tackle the matter on a case-by-case basis. However, if the Court in question decides not to give such order, it needs to provide its reasons for its refusal.
Bill 169 of 2020
The aim of this Bill is to primarily reduce the backlog of cases before the Court of Appeal by limiting hearings only to the cases where it considers it necessary. In view of the fact that typically, cases before our courts are based on a combination of written applications and replies, and oral hearings, conceiving a system before the Court of Appeal which eliminates oral hearings entirely is surely a drastic change. This measure will be accompanied by a reduced timeframe for the payment of security for costs in respect of appeal. These two measures seek to fast-track the proceedings as much as reasonably possible. It should be noted from the outset that this new appellate court procedure will not apply to cases before the Constitutional Court, which shall still be appointed for oral hearing. Furthermore, the Bill will apply to judgments subject to appeal which are delivered after the Bill is enacted and in force.
Bill 169 of 2020 stipulates a longer limit for the filing of appeal and replies, extending the limit from 20 to 30 days. The reason provided is that a longer limit will allow ‘written pleadings to be better prepared.’ This Bill essentially provides for an overhaul in the proceedings before appellate courts. It is thus useful to examine how the new procedure will take place, step-by-step.
All proceedings before an appellate court will be conducted in writing and the first step in the process is to file a note of appeal within 10 days from the date of the judgment appealed. This precedes the actual filing of the appeal application and is an entirely new requirement, the failure of which precludes the party from filing the appeal, rendering the judgment of the lower court res judicata. Then follows the application for appeal which needs to be filed within 30 days from the filing of the note of appeal. A reply to the appeal application needs to then be filed within 30 days. This is followed by any cross appeal and the answer thereto.
The appellant may, within 5 days of being notified of the reply, plead the court to authorise him to file a rejoinder addressing only the points of fact or law which were raised for the first time in the reply. Should the Court allow the filing of such rejoinder, it shall be filed within a period not exceeding 30 days from the date of the decree authorising the filing of the rejoinder.
Provided that the Court does not require further clarifications, this rejoinder would mark the closing of the written pleadings, following which the Court of Appeal will proceed to judgment. The security of costs for all appeals will need to be deposited by not later than 3 months from the filing of the appeal, the failure of which would render the appeal abandoned. At present, the deadline for the deposit of the security of costs must be produced and deposited at least one day before the hearing of the appeal. Given that this Bill is intended to remove oral hearings from the process, it is understandable that the legislator needs to provide a more objective timeframe for such deposit.
It is interesting to note how the Bill considers the written pleadings to be the application and reply themselves and does not provide for a note of submissions which would replace the oral hearing. This means that any application and reply filed before an appellate court need to be comprehensive to the extent that, as much as possible, no further clarifications would be required.
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