Warrant in Procinctu
In Maltese civil law, various legal tools are available for securing rights, recovering debts, or protecting oneself from wrongful actions. Among these tools are different types of warrants, detailed in the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta).
Maltese law provides two types of warrants: Precautionary and Executive Warrants. A precautionary warrant serves to protect a party's interests before a legal case has been filed. It is issued to stop the defendant from taking any steps that could hinder the potential enforcement of a future judgment. As its name itself implies, one issues this type of warrant as a precaution. These warrants are typically granted before a final decision is made through the issuance of a decree and aim to secure assets or prevent harmful actions.
Conversely, an executive warrant is used to implement a court's final judgment or to enforce an executive title. After a judgment becomes res judicata, the party in whose favour the case had been passed, can request an executive warrant to enforce the court's decision, allowing the claimant to seize the debtor's assets or take other necessary measures to recover what is owed.
Among these warrants is the Warrant In Procinctu, a tool that is often overlooked but can be a crucial last resort when all other legal remedies have been exhausted. Introduced in 2006 and effective from 2009, the Warrant In Procinctu is detailed in Sub-Title XII of Article 388G of the Code of Organisation and Civil Procedure.
Article 388G specifies:
"(1) Subject to the other provisions contained in Title VII of this Code, the court may, on demand of the party, issue such orders to the Registrar as it may deem necessary for the orders contained in the judgment to be executed:
Provided that this warrant shall not be issued except after an application has been made to this effect by the creditor and after the court is satisfied that the creditor does not have any other means of execution.
(2) There shall be clearly indicated in the application the reason for the necessity of such orders and a decree shall be given thereon after that the debtor has been served notice thereof, to which he may file a reply within four days."
Thus, this warrant allows the court to issue orders to the Registrar to enforce the terms of a judgment, upon request by the party involved. This type of warrant shall only be acceded to upon the creditor's application for it and upon the court determining that no other method of enforcement is available.
The application must clearly state why such orders are necessary. After the debtor is served with notice of the application, they have four days to respond.
In the case of Espedito Mugliett et al. v. Ministru tal-Gustizzja et (Constitutional Court, March 2012), the court confirmed that the Warrant In Procinctu is indeed an executive measure. The court clarified that following this warrant, it can issue any necessary orders to enforce a judgment, but only if it is proven to the court's satisfaction that no alternative enforcement methods are applicable.
In the case of Bella Claudia Nicoletta Cassar vs. Anthony Cassar (May 12, 2016), the Court of Magistrates Gozo awarded Bella Cassar €33,550 against Anthony Cassar but struggled to enforce it due to insufficient assets and ineffective remedies such as a warrant of seizure and a garnishee order.
Thus, given Bella Cassar had no other means of enforcing the judgement passed in her favour she then requested the court issue a Warrant In Procinctu. The court found Bella Cassar had exhausted all other remedies and concluded that the Warrant In Procinctu was appropriate. Thus, upon having determined the latter, the Court ordered the transfer of Anthony Cassar's lease rights to Bella Cassar, which would not affect third-party creditor rights or the Department of Lands negatively.
The Warrant in Procinctu is thus an important and effective tool for the enforcement of judgments and helps further ensure that creditors' rights are better safeguarded.
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.
