Posted Friday, September 4, 2020
The payment of a deposit before the first sitting of an appeal is essential as it guarantees the court expenses, without which the appeal will be deemed to have been deserted

The payment of a deposit before the first sitting of an appeal is essential as it guarantees the court expenses, without which the appeal will be deemed to have been deserted. This was held by the Court of Appeal on 24 August 2020 in AJD Tuna Limited -v- Direttur tal-Agrikoltura u s-Sajd u l-Avukat Generali, more commonly known today as ‘Avukat ta’ l-Istat’.

In this case, AJD Tuna Limited filed an application asking the Court of Appeal to revoke a decree declaring the appeal deserted, since the deposit was not paid. The company explained that it has appealed from a judgement in August 2015.

The defendant was notified of the appeal in September of the same year. The appeal was appointed five years later, on 30 June 2020. The company has received the notice of the first sitting on 19 June 2020, with a notice to pay the deposit. On the day of the sitting the parties appeared but the Court pointed out that the deposit was not paid and therefore, the appeal was declared as deserted. The Company disagreed and raised two arguments. The first being that in fact it was notified with the notice of the appointment of the appeal and payment of the deposit and secondly the non payment was due to a serious error from the directors of the company.

As to the first reason, the company explained that the notices were left with a person who was not an employee of the company.

Furthermore, the error took place because that time was the busiest period of the year, where all the employees and official of the company were extremely busy and they spent long periods of time at sea. When they saw the papers they did not notice it was of an appeal that they had lodged five years before.

The defendant authorities held that these reasons are not justifiable, and the company could not ignore the procedures at law.

The Court of Appeal pointed out that the desertion of a case is intended to penalise a party which would not have followed the procedure and is not intended to force the court to appoint the case or else tax the Court’s administration. This was held in Avukat Dottor Tonio Azzopardi -v- Victor Aquilina et decided on 5 November 1999. The non payment of a deposit is one of the causes of desertion of a case and the court is bound to declare this.  Article 249 of the Code of Organisation and Civil Procedure gives two exceptions where the Court may give the appellant more time to pay the deposit. However, in this case none of the circumstances apply and justify an exception.

As to the grounds of the application, the Court of Appeal held that the company was notified at its offices but a court marshal 10 days before the first hearing. The director of the company explained that in the same building there are other companies of the same group. He was given the notice, but left it for a while, but did not have the time to pass it on to the lawyer.  The Court of Appeal did not accept that the length of time the appeal took to be appointed as a justification for the non payment of the deposit. From the evidence produced there was no error, but a lack of management from the person who should have taken care judicial acts.

Once a decree that the appeal has been deserted, then the first judgement becomes final. As a consequence the application to have the decree revoked is not the proper procedure, since an application is done when the case is ongoing.

To challenge the decree another procedure has to be used.

The Court of Appeal moved to turn down the application.

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