By means of a judgement delivered on the 25th February 2022 in the names of Josette Camilleri -vs- The Malta Union Club u l-kjamata fil-kawza Vira Gatt Butto, the First Hall of the Civil Court presided by Judge Christian Falzon Scerri suggested that it has become high time to amend the procedure relating to the service of court documents (MT: notifika).
Background of the Case
On the 1st November 2019, the First Hall of the Civil Court as otherwise presided had decided on the merits of the case against the party whose joinder (kjamata in kawża) had been requested by the defendant – The Malta Union Club (“Club”). Without delving into the merits of the case, the Club had requested that a third party be joined in the suit to respond to the claims brought forward by the plaintiff. The Court had acceded to this request and ordered that the third party – Vira Gatt Butto – be joined in the suit. Eventually, when the court official tasked with service of court documents went to notify Ms. Gatt Butto, he left the relevant document with the Club’s receptionist where the third party offered autonomous catering services. The third party was neither employed with the Club nor otherwise associated with it but the court official proceeded to declare that the documents had been duly served on the third party.
Seeing the black stamp on the relevant documentation (in civil proceedings, service/notification of documents is evidenced by means of colour-coded rubber stamps where black means successful service and red means negative service), the court declared that the third party had been notified with the case. In view of this, the Court eventually noted that despite this notification, Ms. Gatt Butto had not filed a defence and declared her contumacious (MT: kontumaci, i.e. legal terminology which refers to a situation where a counterparty cannot plead or produce any evidence in the case in view of his/her initial silence). In November 2019, a judgement was delivered against Ms. Gatt Butto.
Ms. Gatt Butto had never received the said court documents yet found herself condemned to pay the plaintiff. Indeed, Ms. Gatt Butto only became aware of the judgement delivered against her when her bank accounts had been frozen following enforcement proceedings taken against her by the plaintiff. She therefore filed a retrial suit – a very limited right of a party to request that the judgement is annulled and heard again due to reasons of a very grave nature, including that the documents instituting the lawsuit had not been served on the party cast and therefore the latter would not be notified about the case.
In its judgement, the Court tasked with deciding whether there was a case for retrial, found that indeed service had not occurred in line with the requirements of law and proceeded to order the that the case be heard again (as per its considerations). The Court found that the request for retrial was well-founded. Ms. Gatt Butto had not been duly notified as the court documents were left with a person who had no relation with her and who had not been authorised by her to accept and/or sign any documents on her behalf. From the acts of the case, it also transpired that the Club’s receptionist had accepted the procedure following insistence from the court official.
Proposal for Legislative Amendments
Whilst reprimanding the court official’s behaviour, the court highlighted that the facts of this case “are evidence of the strong need of amendments relating to the service of judicial acts”. The Court went on to state that it was high time that notification reports are no longer limited to stamps and hand-written notes. By referring to Council Regulation (EC) 1393/2007 of 13 November 2007 and the 1965 Hague Service Convention, the Court solicited the legislator to seriously consider whether standard forms prepared by the Court Registrar should be used. The Court then enlisted some details which these forms could include:
- The nature, name and reference number of the specific court document which needs to be served;
- The mode of service necessary;
- Service date, time and address;
- Name, surname and signature of the person served with the document, and the relation of the same with the person to whom the relevant act is addressed, as applicable;
- The reasons for unsuccessful service, as applicable;
- Name, surname and signature of court official responsible for the relevant service.
The Court finally ordered the notification of this judgement to the Minister responsible for Justice and the State Advocate so that the necessary considerations are made as to whether legal amendments on the mode of service of documents in civil cases are required.
Lawyers Antoine Naudi and Tyrone Grech from this Firm represented the third-party joined in the suit.
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