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The Code Of Organization And Civil Procedure (Amendment) Act, 2004 (Bill No. 27)

A BILL

entitled

AN ACT to amend the Code of Organization and Civil Procedure, Cap. 12, and other laws relating to civil procedure.

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>-
Part I

Short title and commencement.

Amendment of the Code of Organization

and Civil

Procedure, Cap.

12.

1. (1) The short title of this Act is the Code of Organization and Civil Procedure (Amendment) Act, 2003.
(2) The provisions of the various parts of this Act shall come into force on such date as the Minister responsible for Justice may by notice in the Gazette establish and different dates may be so established for different provisions and different purposes thereof.
Part II
2. This Part amends, and shall be read and construed as one with, the Code of Organization and Civil Procedure, hereinafter referred to as “the Code”.
3. Immediately after article 166 of the Code there shall be added the following new article>-
C 405

Addition of new article 166A to the Code.

“Special procedures in respect of certain unopposed claims etc.

166A. (1) In actions for the recovery of a debt certain, liquidated and due not consisting in the performance of an act, and where the amount of the debt does not exceed five thousand liri, it shall be lawful for the creditor to proceed in accordance with the following sub-articles of this article>
Provided that where the debt is not liquidated the creditor may proceed in accordance with this article if he limits his debt to an amount not exceeding five thousand liri and expressly renounces to any part of his claim that may upon liquidation exceed the said sum of five thousand liri.
(2) The creditor shall proceed by filing an official letter to be served upon the debtor wherein shall be stated clearly, under pain of nullity, the cause of the claim, the reasons why the claim should be upheld, and a statement of facts in support of the claim.
(3) The official letter shall also on pain of nullity contain an intimation to the debtor that if he does not reply within thirty days by judicial letter to be served on the creditor rebutting the claim and clearly stating the reasons why the claim should not be upheld, such official letter shall, for the purposes of any law, have the same effect as a judgement of a court, and constitute an executive title>
Provided that>
(a) the debtor may admit the claim in part only and oppose it in other parts, and where the claim is opposed in part only it shall be deemed admitted to the extent that it has not been so opposed<
(b) where the debtor shall have opposed a claim or part of a claim which is subsequently upheld, the costs relative to the claim or part thereof opposed and subsequently upheld shall be borne by him<
(c) the costs of any claim or part thereof that is opposed and not subsequently upheld shall always be borne by the creditor<
C 406

Amendment of article

253 of the Code.

Amendment of article

306 of the Code.

(d) where the debtor has duly opposed the claim, the special procedure contained in this article may not be used again against the debtor as regards the same claim contained in the official letter served on the debtor< and
(e) where the claim arises under the Motor
Vehicle Insurance (Third Party Risk) Ordinance (Cap.
104) the said official letter shall under pain of nullity be also notified to the authorised insurance.
(4) Where the debtor does not oppose the claim, within thirty days from the notification thereof to the debtor, or where the debtor only opposes the claim in part within the aforesaid term, the official letter shall for the purposes of any law have the same effect as a judgement of a court in respect of the claim so unopposed or the part therein so unopposed and constitute an executive title as if such official letter were included in article 253(a) of this Code.
(5) Any executive title obtained according to the provisions of this article in the absence of any opposition on the part of the debtor shall be rescinded and declared null and void if upon a request by writ of summons to be filed by the debtor within twenty days from the first service upon him of any executive warrant based on the said title or any other judicial act, the court is satisfied that the debtor was unaware of the said judicial letter because he was not duly notified.
(6) No opposition other than that specifically provided for in sub-article (5) shall stay the issue or execution of any executive act obtained thereunder or the paying out of the proceeds of any warrant or sale by auction carried out in pursuance thereof.”.
4. Immediately after paragraph (d) in article 253 of the Code there shall be added the following paragraph (e)>
“(e) bills of exchange and promissory notes issued in terms of the Commercial Code.”
5. Immediately after sub-article (4) of article 306 of the Code there shall be added the following sub-article>
“(5) The provisions of article 8 of the Public Registry Act (Cap. 56) shall mutatis mutandi apply to the registrations made under this article.”.
6. Article 915 of the Code shall be repealed.
Part III
7. This Part amends and shall be read and construed as one with the Civil Code hereinafter referred to as “the Code”.
8. Article 2042 of the Code shall be amended as follows>
(i) in paragraph (a) thereof for the words “the name and surname of the creditor” there shall be substituted the words “the name and surname of the creditor and his identity card number written in figures only,”< and
(ii) in paragraph (b) thereof for the words “the name and surname of the debtor” there shall be substituted the words “the name and surname of the debtor and his identity card number written in figures only,”.
Part IV
9. This Part amends and shall be read and construed as one with the Motor Vehicles (Third Party Risks) Ordinance, hereinafter in this Part referred to as “the Ordinance”.
10. Immediately after sub-article (4) of article 10 of the
Ordinance there shall be added the following sub-article (5)>
“(5) Any reference in this article to a judgement or a sentence shall be deemed to include a reference to an arbitral award made under the Arbitration Act, Cap. 387, and one obtained under article 166A of the Code of Organization and Civil Procedure, Cap. 12, and any reference to an action or to proceedings shall be deemed to include reference to arbitration proceedings and to the said article 166A under the said Act.”.
C 407

Repeal of article

915 of the Code.

Amendment of the

Civil Code, Cap.

16.

Amendment of article

2042 of the Code.

Amendment of the Motor Vehicle Insurance

(Third Party Risks) Ordinance, Cap.

104.

Amendment of article

10 of the

Ordinance.

C 408

Amendments to the Arbitration Act, Cap. 387.

Amendment of Article 15 of the principal Act.

Part V
11. This Part amends, and shall be read and construed as one with, the Arbitration Act, hereinafter in this Part referred to as “the principal Act”.
12. (1) Article 15 of the principal Act shall be amended as follows>
(a) in sub-article (3) thereof the words “or that in fact there is no dispute between the parties with regard to the matter agreed to be referred,” shall be deleted.
(b) sub-article (7) thereof shall be deleted and substituted by the following new sub-article>
“(7) Any submission to arbitration of a dispute by an administrator, agent or attorney shall not be valid unless
(a) such person is authorised to submit disputes to arbitration< and
(b) the submission refers to an issue which falls within the powers of such person.”< and
(c) immediately after sub-article (10) thereof there shall be added the following sub-articles>
“(11) In addition to those designated by other laws, the classes of disputes referred to in the Fourth Schedule to this Act are subject to mandatory arbitration and in such cases the parties shall be deemed to be bound by an arbitration agreement in relation to such disputes.
(12) The Centre shall have the power to issue rules in accordance with article 10 relating to the procedures to be adopted in mandatory arbitrations.
(13) The Minister shall have the power by regulations to add, remove or substitute and amend the classes of disputes referred to in the Fourth Schedule and the conditions applicable thereto. Such regulation may determine the conditions applicable in such cases, including>
(i) the specific nature of the disputes<
(ii) the maximum monetary value of such disputes<
(iii) the remedies sought and awardable in relation to such disputes< and
(iv) the manner in which an arbitrator or arbitrators are to be appointed.
(14) Any rules or regulations referred to in the preceding sub-articles shall come into force with effect from the date designated by the Minister and shall not affect any disputes at the time already pending before any court or tribunal.”.
13. Article 44 of the principal Act shall be amended as follows>
(a) immediately at the end of sub-article (3) thereof there shall be added the following new proviso>
“Provided that in the case of interlocutory awards relating to the procedures of the arbitration, no reasons are to be given.”<
(b) in sub-article (8) thereof the words “with all partial, interim and interlocutory awards not already registered” shall be substituted by the words>
“with all partial and interim awards not already registered”< and
(c) immediately after sub-article (9) there shall be added the following sub-article>
“(10) Interlocutory awards are not subject to registration, no recourse may be taken against them and they are binding on the parties to the proceedings immediately on their notification to the parties who shall carry them on without delay.”.
14. Article 51 of the principal Act shall be deleted and substituted by the following new article 51>
C 409

Amendment

of article 44 of the principal Act.

Substitution of article 51 of the principal Act.

C 410

“Arbitral tribunal to determine fees and costs.

51. (1) The arbitral tribunal shall determine fees and costs in accordance with such rules and guidelines which may be made by the Centre from time to time and such determinations on fees and costs shall be subject to review as may be prescribed in such rules or guidelines.
(2) The Centre may be delegated the function of determining fees and costs, by applicable law or by the parties, in specific cases or classes of cases under such conditions as may be stated in such law, in any rules or guidelines issued by the Centre or in the arbitration agreement.”.

Amendment of article

71B of the principal Act.

Addition of new Fourth Schedule to the

principal Act.

15. In article 71B of the principal Act for sub-article (3) there shall be substituted the following>
“(3) Recourse may not be taken against interlocutory awards.”.
16. Immediately after the Third Schedule to the principal Act there shall be added the following Fourth Schedule>
“FOURTH SCHEDULE
(Article 15)
Mandatory Arbitration
The disputes hereunder stated in Part A shall be settled by arbitration and shall be referred to arbitration under the rules stated in Part B in addition to such rules as may be issued by the Centre from time to time.
Part A
1.1 Condominium Disputes
All disputes arising in relation to a condominium regulated by the Condominium Act (Cap. 398).
1.2 Motor Traffic Disputes
Any civil or commercial disputes, not being one in connection with a claim for damages for personal injuries, being a dispute arising from>
(a) any collision between vehicles, or
(b) any voluntary or involuntary damage to property involving vehicles, or
(c) any such claim against an authorized insurer, an assurance company, an underwriter approved by the Minister responsible for transport or other person who in accordance with the Motor Vehicles Insurance (Third-Party Risks) Ordinance (Cap. 104) or any policy of insurance may be liable therefor, and
(d) the value whereof does not exceed five thousand liri.
Part B
1. The arbitration, being domestic arbitration, shall be governed by Part IV of the Act.
2. The arbitral tribunal shall be composed of one arbitrator unless the parties agree that it shall be composed of three arbitrators and notify the Centre within 15 days of the receipt by the respondent of the notice of arbitration<
3. The sole arbitrator, or any of the members of the arbitral tribunal in case it is composed of three arbitrators, shall be appointed by the Chairman of the Centre in accordance with the provisions of the Act unless the Centre is notified of the appointment of an arbitral tribunal within 15 days of the receipt by the respondent of the notice of arbitration<
4. Unless the parties expressly agree otherwise, there shall be a right of appeal from a final award as provided by the Act<
5. The rules on confidentiality, including those stated in articles 37 and 70 of the Act shall not apply to mandatory arbitrations unless the parties expressly agree to such rules and notify the arbitrator and the Centre accordingly.”.
Part VI
17. This Part amends and shall be read and construed as one with the Condominium Act hereafter in this Part referred to as “the principal Act”.
C 411

Amendment of the Condominium Act, Cap. 398.

C 412

Amendment of article 26 of the principal Act.

Repeal of

article 27 of the principal Act.

Amendment of article 28 of the principal Act.

Amendment of Courts and Tribunals Procedures Act,

2002.

Act XXXI of

2002.

Addition of new article

197B to the principal Act.

18. In article 26 of the principal Act for the words from “the parties to the dispute” to the words “of the Malta Arbitration Centre.” there shall be substituted the following “the rules contained in the Arbitration Act or made thereunder relating to mandatory arbitration shall apply.”.
19. Article 27 of the principal Act shall be repealed.
20. In article 28 of the principal Act for the words from “be conducted under the authority” to the words “no one is prejudiced” there shall be substituted the words “be conducted in such rules contained in the Arbitration Act or made thereunder.” and for the words “as envisaged in section 27” there shall be substituted the words “as envisaged in article 26”.
Part VII
21. (1) This Part amends the Courts and Tribunals Procedures Act, 2002, hereinafter in this Part referred to as “the principal Act”.
(2) The provisions of this Part shall come into force on the same date as the provisions of paragraph (b) of article 21 of the principal Act.
22. Immediately after article 197 of the principal Act, there shall be inserted the following new article 197B>-

“Courts of Magistrates to

continue hearing cases pending

before them.

197B. All cases pending before the Court of Magistrates (Malta) or the Court of Magistrates (Gozo) (Inferior Jurisdiction) which relate to any claim for the ejectment or eviction from immovable property, whether urban or rural, before the coming into force of paragraph (b) or article 21 of this Act, shall continue to be heard by the Court of Magistrates (Malta) or the Court of Magistrates (Gozo) (Inferior Jurisdiction), as the case may be, notwithstanding the provisions of article 47(3) of the Code of Organization and Civil Procedure as substituted by article 21 of this Act, and an appeal shall lie from the decision of such courts in the same manner and before the same court as lies form any other decision thereof.”.
Part VIII
23. Notwithstanding the provisions of Part V of this Act, where on the coming into force of that article a case is pending before any court, such case shall continue to be heard by that Court.
24. (1) Saving the provisions of the following provisions of this article, cases pending before the Civil Court before the coming into force of this article and which have not been adjourned for judgement, where the value of the claim or of any counter-claim is not declared, or where the value of the claim or any counter-claim is declared to be less than five thousand Maltese liri or less, shall continue to be heard by that court and shall be taxed as if the value of the claim and counter-claim were over five thousand liri.
(2) Where the plaintiff in a case as is referred to in sub- article (1) by a note filed within sixty days from the coming into force of this article declares that the value of his claim is five thousand liri or less and that he also elects that the lawsuit be decided by the Court of Magistrates, then the records of the case shall be transmitted to the competent Court of Magistrates to be decided by it< provided that>
(i) where there is a counter-claim, unless the person making the counter-claim by a note filed within the term aforesaid declares that the value of his counter-claim is five thousand liri or less, then the records of the case shall not be transmitted to the Court of Magistrates and shall be decided by the Civil Court and shall be taxed as if the value of the counter- claim was over five thousand liri<
(ii) where in the above there are more than one plaintiff and more than one defendant making a counter-claim, the above- mentioned notes must be filed on behalf of all the plaintiffs and all the defendants as the case may be.

___________

Objects and Reasons

C 413

Transitory

Provisions.

Cases pending before

the Civil Court.

The main object of the Bill is to consider a judicial act as an executive title in uncontested claims and to make other provisions to expedite certain procedures.