Posted Friday, September 27, 2019
Garnishee order must be issued by court competent to take cognizance of the matter

The issuing of a garnishee order by a court, that does not have the authority to issue it due to a lack of competence to take cognizance of the matter, is invalid.

This was declared on 12 September 2019 by the First Hall Civil Court in the case of Dr Abigail Critien et. Vs Fair Trading Limited presided by Hon. Judge Joseph R. Micallef.

The Court heard the plea by the defendant company that had a garnishee order issued against it by a lawyer and legal procurator, regarding certain outstanding payments found in the taxed bill of cost issued by the Court Registry due to them for services they had offered the company.

The defendants held that the garnishee order should be revoked on the basis of three grounds.

Firstly, they held that the title is not executable because they were not properly notified.

Secondly, they held that the garnishee was issued by the wrong court on the grounds of incompetence to take cognizance of the matter.
Lastly, they held that the plaintiffs did not have the required juridical interest to enable them to have a garnishee order issued in their favour.

 

The garnishee order was for the sum of EUR4869.01 and five local banks were named garnishees.  

The Court firstly outlined the general principles that are found in Article 281 of the Code of Organisation and Civil Procedure, which speaks about impugning an executive title such as a garnishee order.

It stated that in such cases the Court must look at whether the garnishee has all the requisites required by law, and whether it was issued in an abusive manner.

It reminded the parties that the Court cannot go into the merits of the case itself but must only consider the formal elements of the garnishee order in order to determine whether or not it should be revoked.

This is due to the fact that it is the formal requirements that ensure that due process is followed and that make the order executable.

It was explained that in the case of a precautionary warrant one can file a counter-warrant, but in this case the garnishee order was an executive title and not a precautionary warrant.  

The court firstly observed that proper notification is an issue of extreme importance and improper notification renders the order unexecutable.

It, however, found that the order was notified to the right company address and picked up by a person competent to do so and passed on to the defendants, as is required by law.

The Court then heard the reasoning of the defendant regarding the second claim, who held that the garnishee order was issued by a Court when it did not have the competence to take cognizance of the matter.

This is because there is a distinction ratione valoris between the Court and the Court of Magistrates wherein the latter takes cognizance of claims not exceeding €15,000.

The plaintiffs, however, held that this is not mentioned in the law and that the official letter with which the taxed bill of costs became an executive title was issued by the Civil Court and so it clearly had the competence to order its execution.

The Court refused this argument.

It was held that in line with Article 264(2) of Chapter 12 of the Laws of Malta, executive titles are executable by the court competent to take cognizance of the subject-matter thereof.

Furthermore, the Court commented on the fact that the competence of the Court of Magistrates is exclusive and the fact that the official letter was sent out by the Civil Court does not bring with it the effect that the executive title is also issued by the Court.  

The Court, therefore, reversed the garnishee order, with costs against the plaintiff.

 Malcolm Mifsud
Partner 
Mifsud & Mifsud Advocates 
 
This article is also available on MaltaToday
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