In a decree issued by the First Hall of the Civil Court in Dr Malcolm Mifsud noe vs Ugor Tatlici given on 30 October 2024, the Court ruled that Article 827(1)(a) of the Code of Organisation and Civil Procedure does not allow the Court to carry out a retrial itself. The Court was presided over by Mr Justice Toni Abela.
The Court was deciding on an application filed by the Defendant for him to file additional pleas in an application to enforce a judgement outside the EU. In its decree the court held that it should see whether the foreign judgement, which may be enforced in Malta was obtained by fraud by one of the parties, or else if there was an error in the judgement which can be seen in the acts of the case.
The Court should look at the reasons listed in Article 811 of the Code of Organisation and Civil Procedure (COCP) and not carry out a retrial when deciding whether a foreign judgement may be enforced or otherwise.
The Court pointed out that a retrial may be carried out only by the Court which delivered that judgement as held in Article 814 of the COCP. This is not the case. The foreign court is not carrying out a retrial. For the retrial to be valid there must be a sworn application procedure.
The Court further commented that it waited from December 2020 to May 2023 for the outcome of a Motion for Rehearing in the court in Florida, which is like a retrial under Maltese law. This was an appeal from the Florida judgement.
After three years the Defendant now wants to wait for the outcome of the appeal. The Court held that what is actually happening is that the case is being drawn out unnecessarily. The court had given deferments in order to assure itself that there was a fair proceeding, however neither was it fair that the action constituted further delays. The Defendant has a right to be heard, but also does the Applicant have a right for the proceeding to move forward and be decided.
The Court held it was unfair that the proceedings will be delayed further when the merits of the case have been decided by a foreign court.
The Court then moved to turn down the application to add further pleas.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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