Certain provisions of the Code of Organisation and Civil Procedure, Chapter 12 of the laws of Malta (“COCP”) have recently been amended by means of Act XXXII of 2021 (the “Act”). The main changes (listed briefly hereunder) are targeted towards the provisions contained under Title 1 of Part 1 of the COCP on ‘the Mode of Procedure by application of appeal'.
The procedural changes which the Act has introduced to the COCP include:
- an extension in the time limit to file a reply from an appeal from twenty (20) to thirty (30) days in terms of Article 144 (1) and Article 226 (COCP);
- the requirement to provide a single address for execution of service of notice about the security of costs relating to an appeal and sentencing in terms of Article 144 (3) (COCP);
- the exclusion from providing further documents with the application, reply or rejointed unless express authorisation from the Court is provided in terms of Article 145 (COCP);
- under Article 147 (2) and (4), the Court has now been granted the possibility of demanding the parties by means of a decree, to answer any questions it might have or else demand the parties to clarify any issues that are deemed necessary for the Court before handing down its judgment as well as requesting an oral hearing in terms of Art. 207 (5) of the COCP in relation to any clarifications requested by the Court pursuant to this new provision;
- Article 152 (COCP) now provides that the Registrar shall after the closure of written pleadings verify the payment of the security for costs relating to the principal and incidental appeal and shall unless there is a court order stating otherwise, publish these causes in the list of causes set down for judgment. The notice of date and time of judgment shall likewise be served upon the parties unless the parties exempt the Registrar from duty of service by means of a note. The service of notice is likewise affected in terms of Art. 187 of the COCP;
- Article 153 has been amended in its entirety to provide that in default of a filing of a reply to an appeal or cross-appeal, the defaulting party shall not be debarred from filing making his/her submissions. The amended provision now allows the defaulting party to file an application before the Court having cognisance of the case asking the Court to grant permission to submit a written reply and produce evidence thereof. This course of action will only be acceded to if good reason is shown. Notwithstanding this however, sub-article (2) of Article 153 (COCP) further provides that the application may not be brought if more than ten (10) days have elapsed from the service of the notice of the day when the cause was scheduled for judgment. The amendments provide further protection to the defaulting party by allowing him/her to appear at the hearing of the cause and to bring evidence even in default of presenting a written reply.
- Article 207 (COCP) has likewise undergone substantial amendments and now provides that with the exception of causes before the Constitutional Court and all causes before the Court of Appeal where no oral hearing took place at first instance, all proceedings before an appellant court shall be conducted in writing unless the Court deems fit to hear evidence or oral submissions from the parties. Oral hearings allowed pursuant to this provision, shall be conducted in the manner provided in sub-article (8) of article 207 (COCP). Furthermore, Article 207 (2) provides that where a reply for an appeal raises issues about the nullity of validity of the appeal or mentions fact or points of law which were not raised by the appellant in the appeal application, the appellant may within thirty (30) days from being notified of the reply, request by means of an application the court to authorised him to file a rejoinder to address the new points. The Court will only grant its leave if it considers it reasonable and expedient in the circumstances for the appellant to file a rejoinder. If so granted, the rejoinder shall be filed within a period not exceeding thirty (30) days from when the appellant's lawyer is given written notice of the decree. Judgment shall be delivered upon the closing of written pleadings and payment of security of costs related to the appeal.
- The amendments to Article 209 (COCP) now provide that where the Court sets an appeal for oral hearing and after having been called three (3) times, neither one of the parties nor their advocate appear, or only if the respondent or his advocate appears, the court may declare the appeal to have been abandoned. The case may be reinstated if the appellant within eight (8) days from the day on which the appeal was declared abandoned files and application ordering that the cause be put back on the list for hearing and determination together with the amounts of costs occasioned for non-appearance.
- Whilst previously, the appellant had to produce security for costs within twelve (12) months, the amendments brought about to Article 249 (COCP) has reduced this period to three (3) months from when the appellant receives the notice for payment. If the appellant is not duly notified, the registrar shall within ten (10) days inform the advocate of the appellant in writing that the notice has not been served and the advocate shall duly sign a copy of receipt of such communication. No action shall lie against the advocate for failure to inform such party.
- The time limit for the court to re-appoint civil cases which have been adjourned sine die has also been reduced from six (6) months to three (3) in terms of Article 964 (COCP).
The above amendments to the COCP have come into force by virtue of Legal Notice 315 of 2021 as of the 1st of August 2021 and are not applicable to appeals and/or cases adjourned sine die filed before the coming into force of this Act. The latter shall continue to be regulated by the law in force prior to the amendments.
The relevant amendments and legal notice can be accessed from here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
