If there is no representative, this does not make the acts null. On the other hand, this does not mean that the case can continue to proceed.
The Court has ruled that the Plaintiff of the case is to appoint a representative if they do not ordinarily reside in Malta. This was held in Anthony Dervan and Michelle Dervan vs Mark Critchley and Marie Louise Critchley on 16 April 2024. The judgement was delivered by the First Hall of the Civil Court presided by Judge Doreen Clarke.
The Plaintiffs filed a sworn application concerning a dividing wall between the properties of both Parties and the construction of a room on one of the roofs. The Plaintiffs held that the construction on the roof was contrary to law.
The Defendants pointed out in their statement of defence that the Plaintiffs are not ordinarily resident in Malta and as a consequence they should be represented in these proceedings. The Defendants filed other pleas, however, this judgement is limited to this plea of lack of representation of the Plaintiffs.
The Court in its judgement looked at the facts of this plea and held that Anthony Dervan was present when the sworn application was filed in court and it was him who confirmed the application on oath.
He was also present in the first two sittings in court. However, from the evidence it shows that the Dervans are ordinarily residents in Ireland. The Defendants argue that in this case the Plaintiffs should be represented. It was also argued that it would be impossible for them to notify the Plaintiffs, if they do not live in Malta.
The Plaintiffs argued that the law does not impose that they should be constantly in Malta. As to notification of any acts, these may be done by means of the European Union Regulations or else their lawyer may be notified.
The Plaintiffs in their submissions quoted from ESA Asset Management SRL vs Solutions & Infrastructure Services Limited decided on 17 November 2020 by the First Hall of the Civil Courts.
In this judgement, the Court held that this was discussed in two previous cases. In these rulings, the Plaintiff was not present when the lawsuit was instituted. In one of the cases, the Court declared the acts null in terms of Article 180(1)(a) of the Code of Organisation and Civil Procedure.
The main issue was not whether he should have been present when the acts were filed in Court but whether the Plaintiff should have been present in Malta during the proceedings. The second case was a retrial case before the Court of Appeal. The Court of Appeal dealt with the issue on when the Plaintiff is absent from Malta during the proceedings.
The Court in this judgement had quoted from judgements in Castelli and Zealand, where it was held that presence during the proceedings is required. In other judgements, it was held that the Parties’ presence during the proceedings is not required and presence is just a custom.
The Court quoted from Zealand Holdings Inc vs The Bank Esteru Amsterdam Trade Bank NV decided on 29 April 2014 by the First Hall of the Civil Court. In this sentence, the court held that if a Party is not present in Malta, he or she should appoint a representative who can appear instead of him/her.
If there is no representative, this does not make the acts null. On the other hand, this does not mean that the case can continue to proceed.
The law allows the Court to appoint curators to represent a defendant. The need of the presence, even in the form of a representative, is necessary in order to assure that the acts are correct and that the rights and the obligations of the Parties are observed. If there is no representation the proceedings may be annulled.
This position was explained in Hannah Harris vs Anthony Spiteri decided on 7 October 2014. The Court said that presence or representation is required irrespective of notification and execution of judgement in terms of the EU regulation.
In view of this, the Court moved to order that the Plaintiff regularise their position in these proceedings.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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