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The Code Of Organisation And Civil Procedure (Amendment) (No. 2) Act, 2006 (Bill No. 77)

A BILL

entitled

AN ACT to amend the Code of Organization and Civil

Procedure, Cap. 12.

Title and commencement.

Amendment of article 7 of the Code.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-

1. (1) The short title of this Act is the Code of Organization and Civil Procedure (Amendment) (No.2) Act, 2006, and shall be read and construed as one with the Code of Organization and Civil Procedure, hereinafter referred to as “the Code”.

(2) This Act shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and different dates may be so appointed for different purposes and for different provisions of this Act.

2. Article 7 of the Code shall be amended as follows:

(a) the present provision shall be renumbered as subarticle (1) thereof; and
(b) immediately after subarticle (1), as renumbered, there shall be added the following new subarticles:
‘‘(2) The Chief Justice may designate one of the magistrates as Senior Magistrate; such designation shall be for a specified time or until another magistrate is so designated.
(3) Without prejudice to the provisions of this
Code or of any other law prescribing the court or courts in
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which a magistrate shall sit, the Senior Magistrate shall perform such duties and functions as may be assigned by the Chief Justice or as may be provided by any law for the tiume being in force.’’.

3. In article 9 of the Code, for the words “except such as may be assigned to him by law” there shall be substituted the words “except activities within the Judicial Studies Committee or such as may be assigned to him by law”.

4. Article 11 of the Code shall be substituted by the following new article:

“11. (1) The President of Malta shall assign to each of the judges his duties by assigning to him the court or the chamber of the court or section in which he is to sit ordinarily, and may transfer a judge from one court or chamber or section of a court to another:
Provided that a judge may be assigned to sit ordinarily in more than one court or more than one chamber or section of one or more courts.
(2) The President of Malta is also empowered to surrogate a judge in case of a vacancy in the number of judges.
(3) Where more than one judge is assigned to sit ordinarily in a court, or in a chamber or section of a court, the distribution of duties in general between the said judges shall be made by the Chief Justice, and the registrar shall assign cases and other judicial acts to the judges as directed by the Chief Justice:
Provided that, except where cases or judicial acts are assigned according to general directives or according to rules made pursuant to subarticle (6), where the Chief Justice may be challenged or may abstain from taking cognizance of a case for any of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii) and (iii), (e) and (g), the assignement of such a case shall be made by the Deputy Chief Justice.
(4) Whenever any judge, other than the Chief Justice, is challenged or otherwise lawfully impeded, the Chief Justice shall assign another judge to take cognizance of the case:
Provided that, except where cases or judicial acts are assigned according to general directives or according to rules made pursuant to subarticle (6), where the Chief Justice may be

Amendment of article 9 of the Code.

Substitution of article 11 of the Code.

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challenged or may abstain from taking cognizance of a case for any of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii) and (iii), (e) and (g), the assignement of a judge to take cognizance of that case shall be made by the Deputy Chief Justice.
(5) Without prejudice to the provisions of article 12(2), and except where cases and judicial acts are assigned according to general directives or according to rules made pursuant to subarticle (6), where the Chief Justice is challenged or otherwise lawfully impeded, the Deputy Chief Justice shall assign another judge to take cognizance of the case.
(6) The Rule-Making Board established under article 29 may make rules providing for the manner of the distribution of cases and other judicial acts for the purposes of subarticles (3), (4) and (5).
(7) Any assignment, transfer or subrogation made by the President of Malta, and any distribution of duties in general, and the assignment of cases pursuant to a challenge or abstention made by the Chief Justice or, as the case may be, by the Deputy Chief Justice, shall be deemed to have been properly and sufficiently notified for all purposes if notice thereof is posted in such registry as the Minister may under article 27 prescribe for the purpose before or at the beginning of the period during which such assignment, transfer, subrogation or distribution is to take effect.
(8) Where any dispute arises as to whether a case or other judicial act is to be assigned to one judge or to another judge sitting in the same court or in the same chamber or section of a court, or when a dispute arises as to which chamber or section of a court is to deal with a particular case or a particular judicial act, the matter shall be referred to the Chief Justice who shall, in camera, determine the judge or chamber or section to which the case or judicial act shall be assigned. The determination by the Chief Justice shall be registered in the records of the case and shall be final:
Provided that where the Chief Justice may be challenged or may abstain from taking cognizance of that case or judicial act for any of the reasons mentioned in article
734(1)(a), (b), (c), (d)(ii) and (iii), (e) and (g), the determination
shall be made by the Deputy Chief Justice.’’.
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5. Subarticle (1) of article 12 of the Code shall be substituted by the following new subarticle:

“(1) The provisions of articles 8, 9, 10 and 11(1) shall, mutatis mutandis, also apply to the President of the Court of Appeal.”.

6. Article 29 of the Code shall be amended as follows:

(a) for subarticle (1) thereof, there shall be substituted the following:
“(1) There shall be a Board composed of the Chief Justice, as chairman, who shall also have a casting vote, a judge ordinarily sitting in the Court of Appeal and a magistrate appointed by the President of Malta on the recommendation of the Chief Justice, the Attorney General, the President of the Chamber of Advocates and the President of the Chamber of Legal Procurators whose function shall be to make rules, to be called Rules of Court, for the purposes specified in subarticle (2) or in any other provision of this Code or of any other law.”.;
(b) in subarticle (2) thereof, for the words from “Rules of Court may be made generally” to the words “but without prejudice to the generality of the aforesaid -”, there shall be substituted the following:
“Rules of Court may be made generally in respect of all matters concerning the conduct of the courts and the conduct of causes with the object of ensuring a proper and efficient administration of justice and, in particular, but without prejudice to the generality of the aforesaid -”;
(c) for paragraph (a) of subarticle (2) thereof, there shall be substituted the following:
“(a) for governing the conduct of the courts and for securing and maintaining order and decorum within the building of the courts;”;
(d) immediately after paragraph (g) of subarticle (2)
thereof, there shall be substituted the following new paragraph:
“(h) for fixing the sessions of the forensic year and the vacation days in the superior and inferior courts, and matters ancillary or incidental to such sessions and vacation days:”; and

Amendment of article 12 of the Code.

Amendment of article 29 of the Code.

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(e) immediately after subarticle (7) thereof, there shall be added the following new subarticle:
“(8) Without prejudice to the provisions of subarticle (7), the Chief Justice may, in his discretion, transfer any case from one court to another:

Amendment of article 34 of the Code.

Amendment of article 47 of the Code.

Substitution of article 79 of the Code.

Substitution of article 89 of the Code.

Provided that in the execution of this function the Chief Justice shall discuss the matter with the judges or magistrates concerned, either during any of the meetings convened in accordance with subarticle (6) or during an ad hoc meeting held for the purpose.”.

7. In the proviso to article 34 of the Code, immediately after the words “from such judgment of the First Hall of the Civil Court” there shall be added the words “or from any section of the said Civil Court”.

8. In subarticle (1) of article 47 of the Code for the words “of an amount not exceeding five thousand liri” there shall be substituted the words “of an amount not exceeding ten thousand liri”.

9. Article 79 of the Code shall be substituted by the following new article:

“79. No person may exercise the profession of advocate without the authority of the Government of Malta granted by warrant under the public seal of Malta.”.

10. Article 89 of the Code shall be substituted by the following new article:

“89. (1) The Minister responsible for justice shall, in consultation with the Chamber of Advocates and the Chamber of Legal Procurators, draw up a list of advocates, legal procurators and other experts, who habitually exercise their profession in the courts of justice to perform the duties of curators, advocates or legal procurators ex officio and experts in the Courts of Malta and Gozo, free of charge as may be required under this Code.
(2) The Advocate for Legal Aid referred to in article
911(6) shall draw up separate lists, from the list referred to in subarticle (1).
(3) The advocates and legal procurators appointed under subarticle (1) shall also be bound to give their assistance
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to any person who, not being entitled to the benefit of legal aid, shall apply to the competent court for such assistance, and shall satisfy the court, in such manner and by such means as the court may prescribe, that prima facie he has reasonable grounds for taking or defending or being a party to proceedings and that he did not succeed in engaging the services of another advocate or legal procurator.”.

11. Article 91 of the Code shall be substituted by the following new article.

“91. The names of advocates, legal procurators and other experts referred in article 89 shall be published in a list to be placed at the Chamber of Advocates, the Chamber of Legal Procurators and any other place within the precincts of the courts of justice as the Minister responsible for justice may deem fit.”.

12. In subarticle (1) of article 152 of the Code, immediately after the words “but not later than six months after the filing of the application for appeal”, there shall be inserted the words “and the payment of the deposit”.

13. Article 166A of the Code shall be amended as follows:

(a) in subarticle (1), and in the first proviso thereto, for the words “five thousand liri”, wherever they occur, there shall be substituted the words “ten thousand liri, or such other sum as may be established from time to time by Order in the Gazette by the Minister”; and
(b) immediately after sub-paragraph (ii) of subarticle
(5) thereof, there shall be added the following new proviso:
“Provided that the said application shall be appointed for hearing within two weeks.”.

14. Subarticle (3) of article 167 of the Code shall be substituted by the following new subarticle:

“(3) The provisions of article 156(1)(a), (b) and (c), (2) and (3) and of article 159 shall apply to the said sworn application.”.

15. Subarticle (5) of article 195 of the Code shall be renumbered as subarticle (6) thereof and, immediately after subarticle (4) thereof, there shall be added the following new subarticle:

“(5) (a) Where a cause has been pending before a

Substitution of article 91 of the Code.

Amendment of article 152 of the Code.

Amendment of article 166A of the Code.

Amendment of article 167 of the Code.

Amendment of article 195 of the Code.

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particular court for three or more years, any party to the case may, personally, and without the need of respresentation by any advocate, present an application, (which application shall, however, not form part of the acts of the case) to the Chief Justice requesting that, for the simple reason that the cause has taken so long, the presiding member of the court be changed and the case assigned to another member of the judiciary; the decision of the Chief Justice, which shall be taken in camera, shall be final and conclusive; and where such assignment takes place there shall be no need for any notification of such assignment.

Cap. 369.

Addition of new article 195A to the Code.

(b) Where a cause has been pending for judgment before a particular court for eighteen months or more, any party to the case may, personally, and without the need of respresentation by any advocate, present an application, (which application shall, however, not form part of the acts of the case) to the Chief Justice requesting that, for the simple reason that the judgment has taken so long to be delivered, the presiding member of the court be changed and the case for judgment assigned to another member of the judiciary; the decision of the Chief Justice, which shall be taken in camera, shall be final and conclusive; and where such assignment takes place there shall be no need for any notification of such assignment.
(c) The Chief Justice shall draw up a yearly report on any causes transferred in accordance with the provisions of paragraphs (a) and (b), detailing the possible reasons for such delays, and shall send the report to the Commission for the Administration of Justice. The Commission shall take such action as it may deem appropriate in accordance with the provisions of the Commission for the Administration of Justice Act, and shall, within three months, publish such report.”.

16. Immediately after article 195 of the Code, there shall be added the following new article

"Trial of causes relating to division of property.

195A. (1) A cause relating to the division of property and succession shall, when set down for trial, unless otherwise provided for in this Code, be tried uninterruptedly to a conclusion.

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(2) Nothing in this article contained shall prevent the court from deciding a cause on the day stated in the application where the claim is not contested or the court is satisfied that the plaintiff has no claim or the defendant has no valid defence.
(3) The adjournment of a cause shall not be granted except for the purpose of compliance with any procedure laid down in this Code or, in exceptional circumstances, in accordance with the provisions of subarticle (4).
(4) A cause may be adjourned in exceptional circumstances only if the court is satisfied that such circumstances exist and so states in the decree ordering the adjournment specifying those circumstances, and only on an application filed by the party demanding the adjournment not later than two working days before the day due for hearing or, if the cause of the adjournment arises after the expiration of the said time limit, as soon as practicable thereafter; and the application shall specify in detail the circumstances justifying the demand and shall be confirmed on oath by the applicant or, if the applicant is absent from Malta or is otherwise unable to confirm the application in person, by the advocate signing the application who shall, in such case, further confirm on oath the applicant’s inability to confirm it himself.
(5) The Minister responsible for justice may make regulations for the better carrying into effect of the provisions of this article.”.

17. Article 218 of the Code shall be substituted by the following new article:

“218. The court shall in the judgment premise the reasons on which the decision of the court is based, and shall include a reference to the proceedings, the claims of the plaintiff and the pleas of defendant:
Provided that the Rule-Making Board appointed under article 29 may, by Rules of Court, derogate from the provisions of this article.”.

Substitution of article 218 of the Code.

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Amendment of article 243 of the Code.

Amendment of article 249 of the Code.

Substitution of article 258 of the Code.

18. Subarticle (4) of article 243 of the Code shall be substituted by the following new subarticle:

“(4) In the case of any frivolous and vexatious appeal or re-trial, the Court of Appeal or the Constitutional Court may award double costs against the appellant in favour of the respondent.”.

19. Subarticle (1) of article 249 of the Code shall be substituted by the following new subarticle:

“(1) Saving the provisions of the proviso to article 209(1) and unless otherwise provided in any other law, in the case of an appeal from judgments or decrees given in a cause initiated by sworn application, security for costs is to be produced and deposited in court within six months from the date of the notification of the amount to be deposited or, if the appeal is to be heard earlier than six months from the notification herein mentioned, not later than two days before the date set for the hearing of such appeal.”.

20. Article 258 of the Code shall be substituted by the following new article:

“Procedure for enforcement of executive titles.

258. Where -

(a) a period of ten years has expired since the day on which according to law an executive title mentioned in paragraph (a) of article
253, in respect of judgments and decrees
of the Superior Courts could have been enforced; or
(b) a period of five years has expired since the day on which according to law an executive title mentioned in paragraphs (a), (c) and (d) of article 253, in respect of judgments and decrees of the Inferior Courts or of the Small Claims Tribunal could have been enforced; or
(c) a period of three years has expired since the day on which according to law an executive title mentioned in paragraphs (b), and (e) of article 253, or in respect of proceedings taken under article 166A could have been enforced,
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the enforcement may only be proceeded with upon a demand to be made by an application filed before the competent court. The applicant shall also confirm on oath the nature of the debt or claim sought to be enforced, and that the debt or part thereof is still due.”.

21. Subarticle (1) of article 734 of the Code shall be amended as follows:

(a) paragraph (g) thereof shall be re-numbered as paragraph (h); and
(b) immediately after paragraph (f) thereof, there shall be added the following new paragraph:
“(g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge;”.

22. Article 811 of the Code shall be amended as follows:

(a) the marginal note thereof shall be substituted by the following new marginal note “New trial of decided causes.”;
(b) for the words from “A new trial of a cause” to the words “in any of the following cases:” there shall be substituted the words “A new trial of a cause decided by a judgment given in second instance or by the Civil Court, First Hall, in its Constitutional Jurisdiction, may be demanded by any of the parties concerned, such judgment being first set aside, in any of the following cases:”;
(c) paragraph (e) thereof shall be substituted by the following new paragraph:
“(e) where the judgment contains a wrong application of the law, or there has been a breach of any rule of civil procedure, or there is lack of conformity with any rule of civil procedure.
For the purposes of this paragraph there shall be deemed to be a wrong application of the law only where the decision, assuming the fact to be as established in the judgment which it is sought to set aside, is not in accordance with the law, or that rule of procedure, provided the issue was not in reference to an interpretation of the law expressly dealt with in the judgment;”.

Amendment of article 734 of the Code.

Amendment of article 811 of the Code.

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Amendment to article 911 of the Code.

Amendment of article 925 of the Code.

Addition of article 926 to the Code.

23. Subarticle (6) of article 911 of the Code shall be substituted by the following subarticle:

“(6) There shall be an Advocate for Legal Aid and the expression ''Advocate for Legal Aid'' in this Code or in any other law includes any other lawyer, officer or public officer designated by the Minister responsible for justice to perform, under the guidance of the Advocate for Legal Aid, any function pertaining to the Advocate of Legal Aid or to the administration of the benefit of legal aid as provided for in article 89.”.

24. Paragraph (a) of subarticle (1) of article 925 of the Code shall be substituted by the following paragraph:

“(a) act in the best interest of the person admitted to the benefit of legal aid, and may not demand any form of payment from that party;”.

25. Immediately after article 925 of the Code, there shall be added the following new article:

“Companies not entitled to legal aid. Cap. 386.

926. Companies registered under the Companies Act shall not be entitled to the benefit of legal aid.”.

Amendment to Tariff K in Schedule A of the Code.

Amendment of the Witnesses (Fees) Ordinance. Cap. 108.

26. In paragraph 19 of Tariff K in Schedule A to the Code, for the words "in accordance with item (f) of Schedule A to the Witnesses (Fees) Ordinance" there shall be substituted the words "in accordance with the Schedules to the Witnesses (Fees) Ordinance".

27. The Witnesses (Fees) Ordinance shall be amended as follows:

(a) article 3 thereof shall be substituted by the following new article:
“3. Witnesses shall be entitled to the fees prescribed in Schedule A and D to this Ordinance for attendance before a superior court and to the fees prescribed in Schedule B for attendance before any other court:
Provided that no person employed in the service of the Government of Malta shall be entitled to any fee when called to give evidence by the Government.”;
(b) article 5 thereof shall be substituted by the following new article:
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“5. Witnesses residing in Malta whose attendance is required before a court in Gozo and witnesses residing in Gozo whose attendance is required before a court in Malta shall also be entitled to expenses for board and lodging actually incurred by them in staying in Gozo or in Malta as the case may be. Such expenses shall not exceed the limits laid down in Schedules C or D, as the case may be, to this Ordinance.”;

(c) in Schedule A thereof, for the words “The following fees shall be allowed to witnesses before a superior court:”, there shall be substituted the words “The following fees shall be allowed to witnesses before a superior court of criminal jurisdiction:”;
(d) in Schedule C thereof, for the words “The following expenses for board and lodging shall be allowed in terms of article 5 for each day a witness attends at any court:”, there shall be substituted the words “The following expenses for board and lodging shall be allowed in terms of article 5 for each day a witness attends at any court of criminal jurisdiction:”; and
(e) immediately after Schedule C thereof, there shall be added the following new schedule:
"SCHEDULE D (Articles 3 and 5)
Fees payable to witnesses in cases of civil jurisdiction

1 For testimony given before civil courts or boards and tribunals

having a civil function Lm10

per day

Provided that if evidence is of a scientific or technical nature, and is given by a person who has not been appointed as an

expert in the cause, the remuneration shall be increased to Lm20 per day

2 Where the provisions of article 5 of this Ordinance apply, the expenses for board and lodging will be equivalent to the then prevailing rate in a Four Star hotel.".

28. (1) The Partition of Inheritances Act is hereby repealed.

(2) Notwithstanding the provisions of subarticle (1), any cause pending before the Partition of Inheritances Tribunal shall continue to be heard before the said Tribunal until final decision.

Repeal of

Partition of

Inheritances

Act.

Cap. 308.

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Objects and reasons

The objects of this Bill are to introduce amendments to the Code of Organization and Civil Procedure, as well as consequential amendments to other laws, in order to achieve a better and more expeditious administration of justice.