Posted Friday, August 31, 2018
Judge gives the history of the Courts’ summer recess

In a decree ordering that a case will start to be heard in October, Mr Justice Grazio Mercieca took the opportunity of giving the history of the Courts’ summer recess. This was held in a decree in a case filed on 14 August 2018 in Malta Stock Exchange plc -v- Pefaco International plc.

The Malta Stock Exchange (MSE) had filed a court case, using the special summary proceedings procedure, known as “bil-giljottina”. Article 29 of the Code of Organisation and Civil Procedures allowed a Board on the Rules of Court and the Minister to establish which are the sessions to be used by the various courts throughout year. Two 2008 Legal Notices establish that the summer recess should take place between 16 July and 15 September of each year. Mr Justice Mercieca pointed out that the same regulations dictate that the next session should start on 1 October, leaving uncertainty of what takes place between 16 and 30 September.

The Court held that the Code does not make any reference to when the recess should take place, but merely makes references to the Rules of Court. This was not always the case, because before 2002, this was established in the Code of Organisation and Civil Procedure. This was the case since Ordinance IV of 1854. We can also see references to the Courts’ recess in the Code de Rohan and Code Manoel. But such references can also be found in Roman Law. The term “sessions” was used when the Prefect held sitting and the recess or vacation were those days when the sittings were not held. There were two types of recess, those formal and those ordinary. The first were held on fixed days and the others were held on days which were unpredictable. In Code De Rohan, the Courts were closed when there were religious feasts such as Sundays, Christmas day, Good Friday. Any acts filed on these days were null. According to Canon Law, no litigation could take place on these days. On the other vacation days, no one was forced to take part in a court case and if no plea was raised the case could continue. According to Regulation 13 of the 1814 Constitution, Thomas Maitland wrote:

“At the expiration of every three months (which period shall be termed a Session), there shall be a vacation of one month; during which time the said several Courts shall be at liberty to adjourn, subject to the provisions hereafter to be established for each of the said Courts respectively”. At present we have three sessions, Epiphany, Pentecost, and Vittoria.

According to Sir Antonio Micallef – who wrote on the Code de Rohan at the beginning of the British rule in Malta – he said that the vacation days did not interrupt the running periods established by law. Sittings were allowed to be held during the recess only in urgent cases, with the approval of both parties and as directed in writing to the court.

In this present case, MSE filed their case on 14 August 2018 using the special summary proceedings, where Article 169 of the Code of Organisation and Civil Procedure stipulates that the first sitting should be held within 15 days and not longer than 30 days from notification. There is nothing blocking the court from holding a sitting during the summer recess if there is a reason. That reason should not be capricious. The Court could not find a valid reason to hold a sitting during the Court holidays and therefore, was to fix a date after the recess.

Mr Justice Mercieca then explained that the procedure of special summary proceedings is an extraordinary procedure that puts the defendant at a disadvantage. The Court used amendments enacted in 1995, that would allow the Court to defer the case, while keeping intact the special summary proceedings procedures. After seeing the acts of the case, such a course of action would not prejudice either of the parties.

The Court then moved the case to be held in early October.

 
Dr. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
This article may also be accessed on Malta Today.  
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