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Code of Organization and Civil Procedure (Cap. 12) Consolidated

CHAPTER 12

CODE OF ORGANIZATION AND CIVIL PROCEDURE

To amend and consolidate the Laws of Organization and Civil Procedure.*

1st August, 1855

ORDINANCE IV of 1854 as amended by Ordinances: V, VII and X of 1856, XII of 1857, XI of 1858, XI of 1859, IV of 1862, III of 1863, V of 1864, IV of 1865, IV of 1868, IX of 1871, VII of 1876, I, VI and VII of 1880, XV of 1885, IX of 1886, VII of 1892; the Malta (Use of the English Language in legal proceedings) Order-in-Council, 1899; Ordinances: XV of 1900, VI and VIII of 1901, II and VIII of 1903, V of 1904, IV of 1905, XV of 1913, I, II and XVII of

1914, II of 1916; Government Notices: No. 340 of 1916, No. 162 of 1917; Ordinance XII of

1918; Government Notices: Nos 136 and 137 of 1919, No. 203 of 1920; Acts: XVI of 1922, IV and XII of 1924, XIII of 1925, XI, XVI and XX of 1929; Government Notices: Nos. 78 and 475 of 1929; Act XI of 1932; Government Notice No. 105 of 1933; Ordinances: IV, XVI, XIX, XXXI

and XXXIII of 1934; Government Notice No. 393 of 1934; Ordinance XXVIII of 1935;

Government Notice No. 138 of 1935; Ordinances: XXI of 1936, XXXVI of 1938, III and XXIX

of 1939; Government Notice No. 549 of 1939; Ordinances: II and XV of 1940; Government

Notice No. 249 of 1941; Ordinances: XI and XII of 1942; Government Notice No. 653 of 1942. Incorporating also Ordinance II of 1868 as amended by Ordinance VI of 1895.

The Code was subsequently amended by Government Notice No. 199 of 1944; Ordinance II of 1947: Acts: LIII and LXII of 1948: Government Notice No. 139 of 1949; Act XXIX of 1952; Government Notice No. 33 of 1953; Act II of 1954; Ordinances: IV of 1961, XXI and XXV of

1962; Act XXII of 1963; Legal Notice 4 of 1963; Acts: XIII and XV of 1964, XIX and XXXII of

1965; Legal Notice 46 of 1965; Acts: XXXI of 1966, XX of 1968; Legal Notices: 2, 7 and 9 of

1968; Acts: I and XXI of 1969, XXVII of 1970, XXIII and XXX of 1971; Legal Notice 78 of

1971; Acts: XI and XLVI of 1973, V, VII, XXXV and LVIII of 1974, X and XXIV of 1975; Legal

Notices: 148 and 154 of 1975; Acts: XVIII and XXII of 1976, XI and XXVII of 1977, XII of

1978, XXVII of 1979; Legal Notices: 29 and 95 of 1979; Acts: XI, XIV and XXXI of 1980; Legal Notices: 49, 99 and 102 of 1980; Acts: VIII, XLIX and LII of 1981; Legal Notices: 56

and 96 of 1981; Act XVI of 1982; Legal Notice 42 of 1982; Acts: XIII and XV of 1983, IV and

XI of 1984, XII, XIII and XX of 1985, V and XXXIX of 1986; Legal Notices: 3 of 1986, 1 of

1987, 28 of 1988, 120 of 1989; Acts: VIII of 1990, XVII of 1991; Legal Notice 116 of 1992; Acts: XXII of 1992, XXI of 1993, XI of 1994 and V of 1995; Legal Notices 91 and 190 of 1995;

Act XXIV of 1995; Legal Notice 18 of 1996; Acts II and IV of 1996; Legal Notices: 121, 122,

124, 153 and 154 of 1996; 149 and 226 of 1997; Acts XI and XVIII of 1999; Legal Notices 1,

142 and 197 of 2000, and 8 and 34 of 2001; Acts: IV and VI of 2001, III, XVIII and XXXI of

2002, and XVII of 2003; Legal Notices 383 of 2003 and 248 of 2004; Acts III, IX, X, XVI and

XVIII of 2004, and XIII and XXII of 2005; Legal Notices 277, 290 and 342 of 2005; Acts I, XI, XIV and XVI of 2006; Legal Notices 68 and 181 of 2006; Acts VII, VIII and XXXI of 2007;

Legal Notice 407 of 2007; Acts III and XV of 2008; Legal Notice 36 of 2009; Acts I, XII, XV

and XXIII of 2009; Acts V, VIII and IX of 2010; Legal Notice 447 of 2010; Act VI of 2011; and

Legal Notices 371 and 372 of 2011, and 79 of 2012.

*This Code, enacted by Ordinance IV of 1854, was promulgated by Proclamation No. VI of the 1st of May,

1855.

BOOK SECOND
OF THE PROCEDURE IN THE COURTS OF JUSTICE OF CIVIL JURISDICTION

General Provisions 98-124

PART I
OF THE ORDINARY MODE OF PROCEDURE IN CONTENTIOUS MATTERS

PART II
OF THE MODE OF PROCEDURE BEFORE THE COURT OF VOLUNTARY JURISDICTION

BOOK THIRD
OF CERTAIN MATTERS RELATING TO JUDICIAL PROCEDURE

Title VI. Of Precautionary Acts 829-877

General Provisions 829-838B

Sub-title I. Of the Warrant of Description 839-845

Sub-title II. Of the Warrant of Seizure 846-848

Sub-title III. Of the Warrant of Seizure of a Commercial Going Concern 848A-848B

Sub-title IV. Of the Garnishee Order 849-854

Sub-title V. Of the Warrant of Arrest of Sea Vessels 855-865

Sub-title IV A. Of the Warrant of Arrest of Aircraft 865A-865K

Sub-title V. Of the Warrant of Prohibitory Injunction 873-877

Title VII. Of the Protest and Judicial Letter 889-892

Title VIII. Of Security 893-905

Title IX. Of Discontinuance 906-910

Title X. O f the Admis sion to S ue or De fend with the Ben efit of

Legal Aid 911-926

Title X A. Of Legal Aid (Cross-Border Disputes) 928A-928H Title XI. Of Curators 929-942

Title XII. Of Deposits 943-951

Title XIV. Of the Intervention and Joinder of Parties 960-962

Title XV. Of the Desertion of Causes 963-967

Title XVI. Of Arbitration 968-969

Title XVII. Of the Respect due to the Court 988-1003A Title XVIII. Of Judicial Costs 1004-1006

Title XIX. Of Forms 1007-1008

Repealing Provision 1009-1009B

SCHEDULES

Schedule A. Ta ri ff s referred to in the Code of Orga nization and

Civil Procedure.

Schedule B. Forms. Schedule C.

Title. 1. The title of this Code is Code of Organization and Civil

Procedure.
BOOK FIRST
Title 1

OF THE COURTS OF JUSTICE GENERALLY

Civil courts of justice. Amended by: XXII. 1976.4; XXXI. 2002.3.

2. (1) The courts of justice of civil jurisdiction for Malta are either superior or inferior. Each court may be divided into different sections.

(2) Unless otherwise established by law, the President of Malta may by Order establish the sections of each Court, and designate the categories of cases assigned to each section; and may by subsequent Order amend, revoke or substitute such Order.
(3) Saving any other provision of law, the courts of justice of civil jurisdiction are exclusively vested with the judicial authority in civil matters within the jurisdiction of the tribunals of Malta.

Superior courts. Amended by: XIII. 1964.2. Substituted by:

L.N. 148 of 1975; XXIV. 1995.2.

3. The superior courts are: (a) the Civil Court;
(b) the Court of Appeal; and
(c) the Constitutional Court.

Inferior courts. Amended by: XV.1913.1; VIII. 1990.3.

4. The inferior courts are:

(a) the Court of Magistrates (Malta) for the Island of
Malta;
(b) the Court of Magistrates (Gozo) for the Islands of
Gozo and Comino.

Jurisdiction of superior and inferior courts. Amended by: IX. 1886.1.

5. (1) Save as otherwise provided by law, the jurisdiction of the superior courts is general for Malta.

(2) The jurisdiction of the inferior courts is limited to particular places.

Constitution of superior courts. Amended by: IX. 1886.2;

IV. 1905.2; XV.1913.2;

XVII.1914.1; XXXI.1934.2; XXVIII.1935.2.

Substituted by: XIII. 1964.3;

L.N. 148 of 1975. Amended by: XXII. 1992.2.

6. (1) The Chief Justice and President of the Court of Appeal an d all other judg es shall sit i n t h e superior co urts as by law provided.

(2) Besides the Chief Justice, the judges of the Superior Courts shall be thirteen or such greater number as the President of Malta may by Order prescribe.

7. (1) The magistrates shall sit in the inferior courts.

(2) The Chief Justice may designate one of the magistrates as Senior Magistrate; such designation shall be for a specified time or until another magistrate is so designated.
(3) Without prejudice to the provisions of this Code or of any other law prescribing the court or courts in which a magistrate shall sit, the Senior Magistrate shall perform such duties and functions as may be assigned by the Chief Justice or as may be provided by any law for the time being in force.

Constitution of inferior courts. Amended by: IX.1886.3. Substituted by: XIII.1964.4. Amended by: VII. 2007.2.

8. (1) Saving the cases expressly provided for in this Code, the judges shall not, except in op en co urt, either di rectly or indirectly, hold any communication with any suitor in any of the courts, or with any advocate, legal procurator, or other person on behalf of such suitor, in regard to any suit which is pending at the time, or is about to be commenced or prosecuted. Nor shall they, wit ho ut th e pe rm issio n of th e Pr esiden t of Mal ta, f ir st had and obtained on an application to that effect, act as advocates or in any case give counsel or advice in regard to any suit which they know to be already c o mmenc ed, or which they foresee as likely to commence.

(2) The provisions contained in this article shall not apply in the case of lawsuits concerning any of the parties mentioned in article 734(a), (b), (c) and (e).
(3) Nothing in the preceding subarticle shall be deemed to preclude a ju dge or magistrate from comm unicating with t h e advocate or lega l procurator of a party in connection with any matter concerning the management of a cause pending before the judge or magistrate:
Provided that a magistrate shall not be debarred from holding any communication for the purposes of any inquiry into any criminal matter when such magistrate is holding an inquiry under Title II of Part I of Book Second of the Criminal Code.

Judges may not communicate with suitors, etc. Amended by:

L.N. 46 of 1965; LVIII. 1974.68; L.N. 148 of 1975; XXXI. 2002.4.

Exceptions.

Cap. 9.

9. Moreover, it shall not be lawful for any of the judges to act as an arbitrator, or to accept any tutorship or other administration except activities within the Judicial Studies Committee or such as may be assigned to him by law.

10. (1) The judges shall, before entering on the execution of their of fice, ta ke, before the Pr esident of Malta, th e oath of allegiance set out in the Constitution of Malta and the following oath:
Oath of Office

I........... do s wear that I will faithfully per form the duties of Judge without favour or partiality, according to justice and right, a nd in accord a n ce wi th th e laws an d cu st om s of Malt a, to the

Judges may not act as arbitrators etc. Amended by: L.N.148 of 1975; VII. 2007.3.

Oaths of allegiance and of office to be taken by judges. Amended by: XIII.1964.5;

L.N. 46 of 1965; LVIII. 1974.68;

L.N. 148 of 1975; XII.1978.2;

XXIV. 1995.3;

XXXI. 2002.5.

Form of oath of office.

honour of God and the Republic of Malta, and that I will not hold, either directly or indirectly, any communication with any suitor in any of the Courts, whether superior or inferior, his Advocates or Le ga l P roc ura t or s, or with any ot her person on behalf of such suitor, in regard to any suit pending or about to be commenced or prosecuted in any of the said Courts, except in open court, saving the cases expressly provided for by law; and that I will disclose in open court, and make known to the President of Malta any such communication as may be made to me. And I do further swear that I wi l l no t act , either dire ctly or indirectly, as an Ad voca te , or arbitrator, nor give in any case counsel or advice to any person in regard to any suit already commenced or to be commenced in any of the said Courts, saving the cases excepted by law, without the permission of the President of Malta first had and obtained upon an application to that effect. So help me God.

(2) Where any communication as is referred to in the form of oath contained in sub-article (1) consists in an anonymous letter or in a letter the writer whereof cannot be readily identified, or where an y such com m un icati on co ntai ns in su lti ng o r of fensive expressions, the judge who received the communication need not read out the communication in open court but may instead disclose in open court the fact of such receipt and shall in any case make the content thereof known to the President of Malta.

Distribution of duties of judges. Amended by: I.1914.1; XII.1918.2; XII.1964.6;

L.N. 46 of 1965; XXIII.1971.2;

LVIII. 1974.68; L.N. 148 of 1975; XXII. 1992.3;

XXXI. 2002.6. Substituted by: VII. 2007.4.

11. (1) The President of Malta shall assign to each of the judges his duties by assigning to him the court or the chamber of the court or section in which he is to sit ordinarily, and may transfer a judge from one court or chamber or section of a court to another:

Provided that a judge may be assigned to sit ordinarily in more than one court or more than one chamber or section of one or more courts.
(2) The President of Malta is also empowered to surrogate a judge in case of a vacancy in the number of judges.
(3) Where more than one judge is assigned to sit ordinarily in a co urt , or in a cham ber or sectio n o f a court, th e di st rib uti on of d ut ies in g en era l bet wee n th e sai d ju dg es sh al l be m ade by t he Chief Justice, and the registrar shall assign cases and other judicial acts to the judges as directed by the Chief Justice:
Provided that, except where cases or judicial acts are assigned according to general directives or according to rules made pur su an t to su barti c l e (6), where t h e Chief Ju st ice may b e challenged or may abstain from taking cognizance of a case for any of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii) and (iii), (e) and (g), the assignement of such a case shall be made by the Senior Administrative Judge referred to in subarticle (11).
(4) Whenever any judge, other than the Chief Justice, is challenged or otherwise lawfully impeded, the Chief Justice shall assign another judge to take cognizance of the case:
Provided that, except where cases or judicial acts are assigned according to general directives or according to rules made pur su an t to su barti c l e (6), where t h e Chief Ju st ice may b e
challenged or may abstain from taking cognizance of a case for any of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii) and (iii), (e) and (g), the assignement of a judge to take cognizance of that case shall be made by the Senior Administrative Judge referred to in subarticle (11).
(5) Without prejudice to the provisions of article 12(2), and exce pt where ca ses a nd judicial a cts are ass i gne d a cc o rding to general directives or according to rules made pursuant to subarticle (6), where the Chief Justice is challenged or otherwise lawfully impeded, the Senior Administrative Judge referred to in subarticle (11) shall assign another judge to take cognizance of the case.
(6) The Rule-Making Board established under article 29 may make rules providing for the manner of the distribution of cases and other judicial acts for the purposes of subarticles (3), (4) and (5).
(7) Any assignement, transfer or subrogation made by the President of Malta, and any distribution of duties in general, and the assignment of cases pursuant to a challenge or abstention made by the Chief Justice or, as the case may be, by the Senior Administrative Judge referred to in subarticle (11), shall be deemed to have been properly and sufficiently notified for all purposes if notice thereof is posted in such registry as the Minister may under article 27 prescribe for the purpose before or at the beginning of the perio d du ring whi c h such assign ment, t r ansfer, su bro g ation or distribution is to take effect.
(8) The registrar shall keep a record of all notices posted up in t e r m s of th e last p r eced ing sub a r ticle an d o f t h e d a t e of such posting.
(9) Where any dispute arises as to whether a case or other judicial act is to be assigned to one judge or to another judge sitting in the same court or in the same chamber or section of a court, or when a dispute arises as to which chamber or section of a court is to deal with a particular case or a particular judicial act, the matter sh al l be refer r ed t o th e Chief Just ice who shall, in camera , determine the judge or chamber or section to which the case or judicial act sha l l be as signed. The d e t e r minati o n by th e Ch ief Justice shall be registered in the records of the case and shall be final:
Provided that where the Chief Justice may be challenged or may abstain from taking cognizance of that case or judicial act for any of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii) and (iii), (e) and (g), the determination shall be made by the Senior Administrative Judge referred to in subarticle (11).
(10) When more than one judge is assigned to sit in a chamber or section of a court not being an appellate court, the Chief Justice may designate one of the judges as President of that chamber or section; su ch designat i on shall be for a specif ied time or until anoth e r ju dge is so desig n ated. The Ju dge so design ated shal l perform such duties and functions as may be assigned by the Chief Justi ce o r as may be pro vided b y any l aw for the t ime b ei ng in force.
(11) For the purposes of this article, and in order to perform the dut ies list e d in th is article, t h e Ch ief Just ice sh al l n o min at e a Senior Administrative Judge.

Applicability of certain provisions to President of Court of Appeal. Amended by:

I. 1914.2; XXXI. 1934.3; XIII. 1964.7; XXXI. 2002.7; VII. 2007.5.

12. (1) The provisions of articles 8, 9, 10 and 11(1) shall, mutatis muta ndis , also apply to the Presi d ent o f the Court of Appeal.
(2) Whenever the President of the Court of Appeal is, in the cases provided for by law, cha lleng ed or o t herwise lawf ully impeded, the senior of the judges constituting the Court of Appeal shall be the President of that court.

Appointment of supplementary judges. Amended by: XII.1918.3; XXXI.1934.4. Substituted by: XIII.1964.8. Amended by: LVIII.1974.68.

Oaths to be taken by supplementary judges.

Amended by: XV.1913.3;

XII.1918.4; XIII.1964.9;

L.N. 46 of 1965; LVIII.1974.68.

Applicability of certain provisions to magistrates. Amended by: XV.1913.5;

IV. 1924.3; VIII. 1990.3; XXIV. 1995.4. Substituted by: XXXI. 2002.9; VII. 2007.6.

Judges and magistrates may not hold other offices of profit. Exceptions. Amended by:

IV. 1868.1; XV. 1913.5;

IV. 1924.4.

Substituted by:

XXIV. 1995.5.

Amended by:

XXXI. 2002.10.

Oaths to be taken by magistrates. Amended by: XV.1913.5; IV.1924.5;

L.N. 46 of 1965; LVIII. 1974.68;

L.N.148 of 1975; XII.1978.3.

13. Repealed by XXXI. 2002.8.

14. Repealed by XXXI. 2002.8.

15. The provisions of articles 8, 9, 10 and 11 shall, mutatis mutandis, apply to magistrates; and the references to the Senior Administrative Judge in subarticles (3), (4), (7) and (9) of article 11 shall be construed as references to the Senior Magistrate referred to in article 7(2).

16. It shall not be lawful for any judge or magistrate to carry out any other profession, business or trade, or to hold any other office of profit whatsoever, even though of a temporary nature, with the exception of any judicial office on any international Court or tribunal or any international adjudicating body, the office of examiner at the University of Malta.

17. Repealed by XXXI. 2002.11.

18. Repealed by XXXI. 2002.11.

19. Repealed by XXXI. 2002.11.

20. Repealed by XXXI. 2002.11.

21. (1) The Maltese language shall be the language of the courts and, subject to the provisions of the Judicial Proceedings (Use of English Language) Act , all the proceedings shall be conducted in that language.
(2) Where any party does not understand the language in which the oral proceedings are conduc ted, such proceedings shall be interpreted to him either by the court or by a sworn interpreter.
(3) Any evidence submitted by affidavit shall be drawn up in the language normally used by the person taking such affidavit. The af fid a vi t, wh en no t in Malt ese i s t o be f i l e d to get h er wi th a translation in Maltese, which tr anslation is furthermore to be confirmed on oath by the translator.

Surrogation of magistrates. Amended by: XV.1913.6; XXXI. 1934.5; L.N. 46 of 1965; LVIII.1974.68; XXIV.1995.6.

Power of President of Malta to make regulations respecting the distribution of duties of magistrates in Malta or Gozo. Added by: IX.1886.4. Amended by: XV.1913.6;

L.N. 46 of 1965; LVIII.1974.68;

VIII.1990.3; XXIV.1995.7.

Supplementary magistrates for Gozo.

Amended by: XV.1913.6;

XIII.1964.11; L.N. 46 of 1965; LVIII.1974.68;

VIII.1990.3; XXIV.1995.8.

Language of the courts.

Amended by: Order-in-Council of 1899, s.11;

II.1914.1; Letters Patent,

1921, s.57(3);

XVI.1929.5,6;

XI.1932.1,2;

XXXI.1934.6;

XXI.1936.2.

Substituted by:

XXXII.1965.8.

Amended by:

XXIV. 1995.9.

Cap. 189.

22. (1) Causes shall be tried in public:

Provided that it shall be lawful for the court to order that the cause be heard w i t h cl osed do ors, shou ld de cency or g ood morals so require.
(2) It shall also be lawful for the court, in any other case, at the request of both parties, upon good reason being shown, to order that the cause be heard with closed doors.

Causes to be tried in public. Exceptions. Amended by:

IV. 1862.2.

(3) In any of the said cases, the order of the court shall be recorded.

Order of court to be recorded.

Judgments to be delivered in public. Substituted by: XXIV.1995.10.

Each court to deal with matters pending before it.

Suitors, etc., not to have private communication with judges or magistrates. Amended by: XI.1859.1;

XXXI. 1934.7; L.N. 148 of 1975.

Mode of applying to court for any order.

Registry of superior courts. Amended by: VI.1880.2;

L.N 46 of 1965; X. 1975.2;

XXI V. 1995.11. Substituted by:

XXXI. 2002.12.

23. The judgment shall in all cases be delivered in public. The cour t delivering the judgment shall read out the operative part which is to be included in the concluding part of the judgment. The operative part of the judgm en t shall i n clu d e a reference to the claims or pleas which have been decided upo n an d every declaration intended to be conclusive or binding. Immediately upon delivery the judge or magistrate shall deposit a signed transcript of the judgment in the records of the case.

24. Any order in regard to any matter pending before the courts shall be given by the court to which such matter appertains, and any application for any such orde r shall be made to such court exclusively.

25. Saving the proviso to article 15, suitors as well as advocates, legal procurators and all other persons acti ng in the name and on behalf of such suitors, are, under the penalties laid down in article 997, forbidden to make any private application to the judges or to the magistrates in regard to matters pending or to be brought before any of the courts of justice.

26. Any suitor, advocate or legal procurator, desiring to apply to the court for any order, may do so either when the court is sitting or at any other time; but, in the latter case, the application must be made through the registrar.

27. (1) There shall be such number of registries as the Minister responsible for justice may prescribe by regulations. Such regulations may also establish the place of such registries, the acts that each registry is competent to receive and all other matters necessary for the proper functioning thereof.

(2) Any provision in this Code or in another law or regulation which makes reference to a registry or to a section of a court shall be construed as a reference to the registry of the specific court or section established for the purpose under subarticle (1).
(3) The Minister responsible for justice shall designate a public officer to be responsible for each registry that is established under subarticle (1) and, in making any such designation, the Minister r e spo n sib l e fo r just ice ma y al so deter m in e th e f u n c ti ons to be performed by such person and all matters ancillary thereto.

Court archives. Amended by: VI. 1880.3;

XI. 1942.2;

L.N. 4 of 1963;

XXXI. 1966.2.

Sostitwit:

XXXI. 2002.13.

28. There shall be such archives wherein there shall be deposited all the acts of the courts which are to be deposited in terms of article

65. The Minister responsible for justice may prescribe the number of
archives to be set up, the acts which shall be deposited in each archive, their location, the manner in which records are to be kept and any other matter relating or ancillary thereto.

29. (1) There shall be a Board composed of the Chief Justice, as chairman, who shall also have a casting vote, a judge ordinarily sitting in the Court of Appeal and a magistrate appointed by the President of Malta on the recommendation of the Chief Justice, the Attorney General, the President of the Chamber of Advocates and the President of the Chamber of Legal Procurators whose function shall be to make rules, to be called Rules of Court, for the purposes specified in subarticle (2) or in any other provision of this Code or of any other law.

(2) Rules of Court may be made generally in respect of all matters concerning the conduct of the courts and the conduct of causes with the obj ect of ensuring a proper and ef fi cient administration of justice and, in particular, but without prejudice to the generality of the aforesaid -
(a) for governing the conduct of the courts and for securing and maintaining order and decorum within the building of the courts;
(b) for fixing the days, hours, duration and number of the sittings of the courts, determining the manner of distribution of the causes among judges and the magistrates appointed to sit in a particular court or chamber thereof, and for making other provision in respect of any matter aforesaid as the Board may deem appropriate;
(c) for regulating leave of absence, for any reason, by judges, or magistrates, including a requirement of authorisation or sanctioning of such leave by the competent authorities;
(d) for establishing any forms not provided for in this
Code;
(e) for carrying into effect the provisions of the Judicial Proceedings (Use of English Language) Act, as regards the language to be used in the proceedings;
(f) for making provision with respect to judicial acts and matters of or incidental to practice and procedure not provided for in this Code or in any other law;
(g) for establishing case management procedures;
(h) for fixing the sessions of the forensic year and the vacation days in the superior and inferior courts, and matters ancillary or incidental to such sessions and vacation days:
Provided that nothing contained in such rules shall be inconsistent with or repugnant to the provisions of this Code or any other law:
Provided further that the Minister responsible for justice may, in the absence of the Rules of Court made in accordance with the provisions of this subarticle, make regulations on any matter referred to in this subarticle.
(3) The Board may act notwithstanding any vacancy in its

Rule-Making Board. Amended by: XV. 1913.7; XXXI. 1934.8; XXI. 1936.3; XIII. 1964.12; XIX. 1965.2; XXXII. 1965.8;

L.N. 46 of 1965; XXX. 1971.3; LVIII. 1974.68; L.N. 148 of 1975; LII. 1981.2;

XXII. 1992.4. Substituted by:

XXIV. 1995.12. Amended by:

XXXI. 2002.14; VII. 2007.7.

Cap. 189.

membership but shall not act unless at least the Chief Justice and another two members are present.
(4) Rules made under this article shall be subject to the approval of the President of Malta, and shall come into force on or after the day of their publication in the Gazette, as may be specified therein.
(5) The Minister responsible for justice may by regulations confer on the Board addi tional powers and functio ns for th e amelioration of the administration of justice.
(6) The Chief Justice may from time to time convene meetings of judges and magistrates, either separately or collectively, and shall regularly consult with the same, individually or collectively, regarding matters concerning the conduct and trial of causes, the application and conduct of court procedures and proceedings, the implementation of administrative procedures connected with the trial of causes and the conduct of proceedings, the relationship between the judiciary and the Commission for the Administration of Justice, the making of rules of co urt an d su ch oth e r matters as th e Chi e f Justice may d e em appropriate to discuss.
(7) Subject to the foregoing provisions of this article and to any rul e s or regu lat i on s m a de th ereunder , the judges and the magistrates shall have power to regulate the conduct of proceedings and of th e trial of the causes before the respective courts over which they preside, and to give directives for the maintenance of order at the sittings of the court, according to law.
(8) Without prejudice to the provisions of subarticle (7), the Chief Justice may, in his discretion, transfer any case from one court to another:
Provided that in the execution of this function the Chief Just ice sh all discuss the matter wi th the ju dges or m a gist rat e s c o ncerned, either du ring any of the meetings convened in accordance with subarticle (6) or during an ad hoc meeting held for the purpose.

Advocates and legal procurators when appearing in court to be deemed officers of court.

30. Advocates and legal procurators, when they appear before the superior or inferior courts, shall be deemed to be officers of the court.

Title II

OF THE SUPERIOR COURTS

L.N.148 of 1975. Substituted by: XXIV.1995.13;

XXXI. 2002.16.

civil and commercial nature, and of all causes which are expressly assigned by law to the said Civil Court.

33. The exercise of voluntary jurisdiction in matters of a civil nature shall be assigned to the Civil Court.

34. Save where otherwise provided by this Code or any other law, judgments of the Civil Court, First Hall, are subject to appeal to the Court of Appeal:

Provided that in cases where a cause commenced by a swo r n app lication , and where n o expli c i t decision has b e en requested and given as to the interpretation of the Constitution in terms of article 95(2)(d) of the said Constitution, is decided by the First Hall of the Civil Court by a judgement wherein points of law about fundamental human rights or references to the Constitution are discussed and decided as part of the merits of the cause, the Court of Appeal shall still be deemed to be competent and to have jurisdiction to decide an appeal from such judgement of the First Hall of the Civil Court.

Voluntary jurisdiction. Amended by:

L.N. 148 of 1975. Substituted by: XXXI. 2002.17.

Appeal from judgements of Civil Court, First Hall.

Amended by: XV. 1913.8; XXIV. 1995.14; IX. 2004.3;

L.N. 181 of 2006.

35. No appeal shall lie from any decree of the Court of voluntary jurisdiction; but it shall be lawful for any party, who deems himself aggrieved, to bring an action before the Civil Court, First Hall, for the necessary order.

36. Repealed by: XXIV. 1995.15.

37. Repealed by: XXIV. 1995.15.

38. Repealed by: XXIV. 1995.15.

39. Any Judge sitting in the Civil Court, or any section thereof shall regulate the proceedings concerning average and shall attend, either personally or through an advocate deputed by him for the purpose, at the drawing up of sea-protests.

Mode of impugning decrees of Court of voluntary jurisdiction. Amended by:

IX. 2004.11.

Commercial Court. Constitution. Jurisdiction. Amended by:

IV. 1862.3; IX.1886.5,6; IV.1905.2,3; XV.1913.9;

L.N. 148 of 1975: L.N. 154 of 1975.

Further jurisdiction of Commercial Court.

Amended by: IV. 1862.3;

IV.1905.4.

Jurisdiction in bankruptcy, etc. Amended by:

XI. 1858.2; IV.1862.3;

IV.1905.3; XV.1913.10.

Duties of Judge of Civil Court, First Hall in respect of proceedings concerning average and sea-protests. Amended by:

IV. 1862.3: IV. 1905.5;

XXII. 1992.5; XXIV.1995.357;

XXXI. 2002.18.

of more than one chamber.

Added by: XXII. 1992.6. Amended by:

XXIV. 1995.16.

Appeal from judgements of Commercial Court. Amended by:

XV. 1913.11.

Court of Appeal Constitution. Jurisdiction. Amended by: VII. 1880.7;

XV. 1913.14; XIII. 1964.13; L.N. 46 of 1965; XXX. 1971.4; LVIII. 1974.68; L.N. 148 of 1975; VIII.1990.3;

XXII. 1992.7; XXIV. 1995.18;

VI. 2001.3.

Appeal from inferior courts for Malta.

40. Repealed by: XXIV. 1995.17.

41. (1) The Court of Appeal shall consist of one or more chambers each consisting of the Chief Justice and two other of the judges. Each chamber shall exercise and have all powers as are by this Code or any other law vested in the Court of Appeal.

(2) The number of chambers shall be determined by an Order of the President of Malta.
(3) Where an Order is made by the President of Malta providing for more than one chamber of the Court of Appeal, the rule-making board established under article 29 of the Code shall provide the manner in which cases shall be distributed between the various chambers.
(4) (a) An Order as is referred to in sub-article (3) hereof may provide that where one of the judges, other than the Chief Justice, sitting in one of the chambers, abstains or is otherwise challenged and the challenge is accepted, the case in which such abstention or challenge takes place shall be heard by such other of the chambers as is prescribed in the Order.
(b) Where the Chief Justice is challenged and the challenge is accepted or abstains, the senior judge (other than the Chief Justice) in such other chamber as may be determined in the Order, shall be surrogated for the Chief Justice in the chamber where the case is being heard.
(c) Where notwithstanding the provisions of any orders made under paragraphs (a) and (b) hereof the case may not be heard by any of the chambers as pr ovided for in such order because of a challenge or abstent ion of the Chief Justice or any other of the judges, the Preside nt of Malta shall surrogate another judge or other judges to sit in lieu of the judges challenged or lawfully impeded in the chamber in which the case was first assigned under the provisions of sub-article (3) hereof.
(5) It shall hear and determine all appeals from judgments of - the Civil Court, First Hall; and
the Court of Magistrates (Gozo) in its superior jurisdiction.
(6) The Court of Appeal shall also hear and determine appeals from judgments of the Court of Magistrates (Malta) and Court of Magistrates (Gozo) in its inferior jurisdiction. But, for the purposes of such appeals, the Court of Appeal shall be constituted by one of its members only, and any one of the judges, appointed by the President of Malta to sit for the hearing of such appeals, shall be deemed to be a member of such court. The Court of Appeal as
con sti tu ted u nde r th is suba rt icl e m ay al so be r efer r ed to as th e
Court of Appeal (Inferior Jurisdiction).
(7) Where the Court of Appeal is to hear appeals from the Court of Magistrat es (Gozo) i n its in ferior jur isdiction or f rom judgments or decisions of any board or tribunal delivered by such board or tribunal when sitting in Gozo, it shall hold its sitting in the building of the Courts in Gozo, and for the purpose of such appeals the registry of the Court of Magistrates (Gozo) shall also be the Registry of the Court of Appeal.
42. The Court of Appeal shall be exclusively competent to take cognizance of the appeals referred to in article 6 of the Marriage Legacies Law.

43. Repealed by: XXIV. 1995.19.

44. The Court of Appeal, besides taking cognizance of the causes referred to in this Title, shall also take cognizance of all other causes which by express provision of the law are assigned to it.

Jurisdiction of Court of Appeal in respect of appeals under Marriage Legacies Law. Amended by: VI.1880.4; XV.1913.15; II.1940.2.

Cap. 3.

Jurisdiction of Court of Appeal in issues connected with execution of judgments or warrants.

Amended by: IV.1862.5;

IV.1905.6; XV.1913.13.

Further jurisdiction of Court of Appeal.

45. The Constitutional Court shall be so constituted and shall exercise such jurisdiction as is provided in the C o n s titution of Malta.

46. The provisions of article 34 and of article 41(6) shall be without prej udice t o the provisions of arti cle 46(4), and article

95(2) of the Constitution of Malta and article 4(4) of the European
Convention Act.

Constitutional

Court.

Added by:

XIII.1964.14.

Amended by:

LVIII.1974.68.

Saving. Added by: XIII.1964.14. Substituted by: XXIV. 1995.20. Cap. 319.

Civil Court of Magistrates (Malta). Constitution and jurisdiction. Amended by:

IV. 1865.1; XV. 1913.16;

XXXI. 1934.9; XXIII. 1971.3;

XIII. 1983.5; XII. 1985.2; VIII. 1990.3;

XXIV. 1995.21; VI. 2001.3; XXXI. 2002.21;

L.N. 407 of 2007.

Further jurisdiction. Amended by: XXXI.1934.9; XXIII. 1971.4; XIII. 1983:5; XII. 1985.3; VIII. 1990.3; XXIV.1995.22; VI. 2001.3.

Appeal from judgment of Court of Magistrates. Amended by:

VII. 1880.8; XV. 1913.17; VIII. 1990.3; XXIV. 1995.23. Substituted by: XXXI. 2002.23.

Court of Magistrates (Gozo) as court of first instance.

Amended by: XV.1913.18;

XIII.1925.2; XI.1929.2; XIII. 1964.15;

L.N. 46 of 1965; LVIII. 1974.68; VIII.1990.3;

XXIV.1995.24.

Constitution. Twofold jurisdiction.

OF THE INFERIOR COURTS

47. (1) A magistrate shall sit in the Court of Magistrates (Malta), and such court shall, as a court of first instance, hear and determine all claims of an amount not exceeding eleven thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87), against persons residing or having their ordinary abode in any part of the Island of Malta.

(2) Such court shall also take cognizance of all other causes expressly assigned to it by law.
(3) Nevertheless, causes involving questions of ownership of immovable property, or relating to easements, burdens or other rights annexed to such property, including any claim for the ejectment or eviction from immovable property, whether urban or rural, tenanted or occupied by persons residing or having their ordinary abode within the limits of the jurisdiction of such court, shall not fall within the jurisdiction of the Court of Magistrates (Malta) independently of the value of the claim.

48. Deleted by XXXI. 2002.22.

49. From the judgments of the Court of Magistrates (Malta) or from the Court of Magistrates (Gozo), an appeal shall lie to the Court of Appeal, constituted as provided in article 41(6).

50. (1) Subject to the provisions of article 770 and 771, the Court of Magistrates (Gozo) shall, to the exclusion of the courts of Malta, b e compet ent to tak e cognizance of all claims against persons residing or having their ordinary abode in the Island of Gozo or Comino, as well as of all other causes expressly assigned by law to such court.

(2) Such court shall consist of one magistrate, and shall have a twofold jurisdiction, namely:
(a) an inferior jurisdiction, by virtue of which it shall take cognizance of all causes of the nature of those which, according to articles 47 and 48, are triable by a magistrate for the Island of Malta; and
(b) a superior jurisdiction, by virtue of which, subject to the provisions of article 46 of the Constitution of Malta and article 4 of the European Convention Act, it shall take cognizance of all causes of the nature of those which, according to article 32, are triable by the Civil Court, First Hall.

Inferior, equal to jurisdiction of inferior court of Malta.

and superior which is equal to Civil Court, First Hall. Cap. 319.

51. Repealed by: XXIV. 1995.25.

52. Repealed by: XXIV. 1995.25.

53. In regard to causes within the superior jurisdiction of the Court of Magistrates (Gozo) the provisions relating to the superior courts shall apply.

54. The Court of Magistrates (Gozo), consisting of one magistrate to be named by the President of Malta in that behalf, shall also have, within the limits of its local jurisdiction, the same powers as are assigned to the Ci vi l Co ur t, in i t s vo lu ntar y jurisdiction.

55. Repealed by XXXI. 2002.25.

56. The provision of article 49 shall be without prejudice to the provision of article 46(4) and article 95(2) of the Constitution of Malta, and article 4(4) of the European Convention Act.

Judgments subject to appeal to Court of Magistrates as an appellate court in its superior jurisdiction. Amended by: XXIII. 1971.5; XIII. 1983.5;

XII. 1985.4; VIII. 1990.3.

Judgments subject to appeal to Court of Appeal. Amended by: XXIII.1971.6; XIII.1983.5; XII.1985.5; VIII.1990.3.

Applicability of provisions relating to superior courts, to Gozo Court in its superior jurisdiction. Amended by: XV.1913.19;

XXXI. 1934.10; VIII. 1990.3.

Gozo court as court of voluntary jurisdiction. Amended by:

L.N. 46 of 1965; LVIII. 1974.68;

VIII. 1990.3; XXXI. 2002.24.

Qualifications of magistrates and magistrates surrogate. Amended by: VIII. 1990.3; XXIV. 1995.26.

Saving. Added by: XIII. 1964.16. Amended by:

L.N.148 of 1975. Substituted by:

XXIV. 1995.27.

Cap. 319.

Small Claims Tribunal. Added by:

V. 1995.18.

Cap. 380.

56A. Notwithstanding any of the provisions of this Code the inferior courts shall not take cognizance of any claim falling within the jurisdiction of the Small Claims Tribunal established under the Small Claims Tribunal Act.

Substituted by: XXXI. 2002.26.

Duties of Director General (Courts). Amended by:

VI. 1880.6; XV. 1913.22;

X. 1975.3; XIV. 1980.2.

Substituted by: XXIV. 1995.28. Amended by:

L.N. 34 of 2001. Substituted by: XXXI. 2002.27.

Title IV

OF THE EXECUTIVE OFFICERS OF THE COURT

57. (1) The Director General (Courts) shall be appointed by the Prime Minister and, unless the Minister responsible for justice otherwise directs, he shall be responsible for the administration of all registries, archives, court services and all other administrative offices of the courts.

(2) The Director General (Courts) shall have the functions, powers and duties as are vested in him by this Code or by any other applicable law, as well as by any regulations which may, from time to time, be made by the Minister responsible for justice under this article.
(3) The duties of the Director General (Courts) shall be carried out by the Director General (Courts) personally or by such other persons or by court executive officers as the Minister responsible for justice may by regulation designate or, failing such regulation, by any person so delegated by the Director General (Courts); such regulation may also specify the duties that shall be carried out by each such person or officer.

Registries. Repealed by: XI. 1858.3. Added by:

VI. 1880.7. Amended by:

XXIX. 1952.2; L.N. 4 of 1963; XV. 1964.2;

XXXI. 1966.2; X. 1975.4;

XI. 1977.2.

Substituted by:

XXIV. 1995.29;

XXXI. 2002.28.

58. (1) There shall be such registries of the Courts and other tribunals established by law, as the Minister responsible for justice may by regulations under this article establish.

(2) Such regulations shall assign to each court or tribunal the registry that is to serve it and more than one court or tribunal may in accordanc e with s u c h regis t ries be so s e rved by the same registry.
(3) Any reference in any law to the registry of any particular court or tribunal shall be deemed to be a reference to the registry assigned to such court or tribunal by the Minister in regulations made under this article.
(4) Each registry shall be headed by a public officer designated by the Minister for the purpose and, failing such designation, by the Director General (Courts). The head of each registry is hereinafter referred to as ''the registrar''.
(5) Each registrar shall have the functions, powers and duties vested in him by this Code or by any other applicable law as well as by any regulation which may, from time to time, be made by the Minister responsible for justice.
(6) The duties of the registrar, including any duties during sittings of the courts, shall be carried out by the registrar personally or by such oth e r persons or by court executive officers as t h e
Minister responsible for justice may designate or, failing such designation, by any person so delegated by the registrar, and such designation may also specify the duties that shall be carried out by each such person or officer.
(7) Any provision in this Code or in any other law or regulation whi c h ma kes referen ce t o the regist ra r sh all b e co nstrued as a reference to the registrar of such registry to which the provision refers or the registrar heading the registry assigned to serve that court and, failing any such reference, it shall be construed as a reference to the registrar responsible for the registry assigned to serve the Civil Court.
(8) Subject to the provisions of this Code and of any rules made under article 29, the regist r a r sh all t a ke or der s f r om t h e judicial authorities in relation to any judicial proceedings and in relation to any judicial act, that is to say:
(a) in the superior courts in matters concerning a particular court, he shall take orders from the judge or from the judges, if there are two or more judges, of that court; in other cases, he shall take orders from the Chief Justice; and
(b) in the inferior courts, he shall take orders from the magistrates of the particular court.
(9) The provisions of subarticle (8) shall, subject to the provisions of article 69, apply, mutatis mutandis, to court executive officers.
(10) The Director General (Courts), the registrar and any of the court executive officers so designated by the Minister responsible for justice shall, for the purposes of the Commissioners for Oaths Ordinance, be ex officio Commissioners for Oaths.

Cap. 79.

59. It shall not be lawful for the registrar or any other officer acting in his stead to discharge the duties of registrar in any of those cases in which a judge may be challenged.

60. (1) The Director General (Courts) and each registrar, on entering upon the execution of their respective offices, shall take, before the Court of Appeal, the oath of allegiance referred to in article 10, and the oath of office in the following form:

"I ............. do swear that I will faithfully and with all honesty and exactness perform the duties of Director General / Registrar, to the best of my knowledge, skill and ability. So help me God.".

Cases in which registrar is debarred from acting as such. Added by: VI.1880.7. Amended by: IX. 1886.7;

VIII 1903.1.

Oath to be taken by Director General (Courts).

Amended by: VI. 1880.8;

IX. 1886.8; XXIX. 1952.3;

XV. 1964.3. Substituted by: XXIV. 1995.30;

XXXI. 2002.29.

61. (1) The registrar, unless otherwise provided in this Code, shall register the proceedings and the orders of the court, and the register kept by him shall constitute an authentic proof thereof.

(2) Where a verbal demand for any act or procedure

Other duties of registrar. Amended by: V.1856.1;

VI. 1880.9; XV. 1913.23.

whatsoever is made in cases in which such act or procedure may take place upon a verbal demand of any party, the registrar shall note down such demand, stating whether the same has been made by the party personally or by a legal procurator or by any other lawful representative; and such note shall constitute an authentic proof as to the demand itself and as to the person by whom it has been made.

Authentication of copies.

Liability of registrar. Amended by: VI. 1880.10.

Taxing of judicial costs. Impugnment of assessment of costs.

Amended by: IV.1862.6;

XXXI. 1934.11; XXIV. 1995.31.

62. The registrar shall certify the authenticity of every copy whi c h may be req u ir ed of any act or do cu men t ex isti ng in th e registry.

63. The registrar shall be responsible for any loss, mutilation or alteration of any act or document filed in the registry as well as for any delay in the course of any such act or document.

64. (1) Judicial costs shall be taxed and assessed by the registrar, and the assessment made by him may not be impugned after the expiration of one month. Such action shall be instituted by application which shal l be heard summa rily by the court. Such period, in regard to the person applying for the taxed bill of costs, shall commence to run from the day on which the taxed bill was issued and, in regard to the debtor duly served with such taxed bill by means of a judicial act, from the day of such service.

(2) The applicant shall cause a copy of the application to be served on any person having an interest therein, who shall have twenty days within which to file a reply.
(3) The written pleadings in respect of the application shall be deemed closed by the reply or failing such reply with the expiration of the time allowed for such reply. The parties shall be notified with the date for the hearing of the application.

Archives. Amended by: VI. 1880.11. Substituted by: XXXI. 2002.65.

65. (1) There shall be such archives of the Courts and other tribunals established by law, as the Minister responsible for justice may by regulations under this article establish.

(2) Such regulations shall assign to each court or tribunal the archive s in which the records and acts of such court or tribunal sh all be d e po sit e d, and th e record s of more than one Cou r t or tribunal may, in accordance with such regulations, be deposited in any one particular archive.
(3) The Director General (Courts) shall be responsible for the administration of the archives and shall, subject to the provisions of this Code and of any other law, issue such directives as he may deem necessary for the proper storage of documents therein, access thereto, the making and authentication of copies and for all other matters relating to the archives.
(4) The said Minister may also from time to time make regulations governing the archives and their management.

66. The Minister responsible for justice shall designate persons to act for the Director General (Courts), the Registrar and any court executive officer in the case of absence or other lawful impediment of the Director General (Courts), the registrars, or any court executive officer, as the case may be.

67. (1) There shall be court executive officers who shall be entrusted with the service and the execution of any judicial acts, w a rr ant s an d ot her o r d e rs gi ven b y th e Co ur ts, Ju dg es an d Magistrates and to perform such other duties as may be assigned to them by the Director General (Courts) and the registrars.

(2) The Minister responsible for justice may, by regulations made under this article, designate the officers who shall be court executive officers prescribing their respective duties, powers and responsibilities and may regulate any other matter which he may deem necessary for the better performance of their functions.

Absence or other lawful impediment of Director General (Courts).

Amended by: VI. 1880.12;

VIII. 1903.2; XV. 1913.24; XV. 1964.4;

L.N. 46 of 1965; X. 1975.5;

XXIV. 1995.32.

Substituted by:

XXXI. 2002.31.

Duties of court executive officers. Amended by:

VI. 1880.13; XIX. 1965.3.

Substituted by: XXIII. 1971.7. Amended by:

XII. 1978.4; VIII. 1990.3; XXIV. 1995.33.

Substituted by: XXXI. 2002.33.

68. (1) Court executive officers designated for the purpose by the M i nister responsible for jus tice a r e also cha rged with the maintenance of good order and decorum in the building of the courts.

(2) Without prejudice to the provisions of article 72, every such officer shall, within the precincts of the building of the courts and of any office, building or other premises occupied by, or under the charge of, the Director General (Courts), be empowered to exercise all such functions, powers and duties as are by law vested in Police officers.
(3) Subject to the provisions of article 990 and 992, where such officer detains or arrests any person for any offence committed within the precincts mentioned in the previous subarticle, he shall forthwith bring the offender before a magistrate and charge him with breach of good order and decorum in the buildings of the court and if the court, on summarily hearing the case, finds the offender guilty of breach of good order and decorum in the building of the co urt , sh all con d emn th e offend er t o an y of th e p uni shmen t s mentioned in article 990.

69. (1) Court executive officers shall execute their duties personally unless otherwise prescribed by regulations made by the Mini st er respon si ble for ju st ice, by Rul e s of Court, or, i n th e absence of such regulations or rules, in accordance with the orders even verbal, of the judges or magistrates as provided in article 58.

(2) The provisions of article 59 shall apply to court executive officers or other persons acting in their behalf.

Maintenance of good order in Courts. Amended by: VI. 1880.13. Substituted by: XXIV. 1995.34. Amended by: XXXI. 2002.34.

Court executive officers to execute duties personally. Amended by:

VI. 1880.13; XV. 1913.25;

XXIV. 1995.35. Substituted by: XXXI. 2002.35.

Opposition to court executive officers in the execution of their duties. Amended by:

VI. 1880.13; XIX. 1965.4;

XXIV. 1995.36; XXXI. 2002.36.

Executive officer to inform court of any warrant issued against an exempted person. Amended by:

VI. 1880.13.

Powers of executive officers. Amended by:

VI. 1880.13.

Assistance of Police force. Amended by. VI.1880.13.

70. Saving the provisions of article 992, if any person knowingly avoids, obstructs or refuses service of any act or court order or execution of any warrant or order by any executive officer of the courts, he shall be guilty of contempt of court and shall be liable, on conviction, to the punishments mentioned in article 990.

71. Where, before the execution of any warrant, it shall come to the knowledge of the executive officer that the person against whom the warrant has been issued is a person in favour of whom an ex empti on i s gran ted by law, he sh all , forthw ith, t h roug h th e registrar, or, in case or urgency, personally, report the fact to the court in order to receive such directions as may be requisite.

72. Every officer charged with the execution of any order of th e co urt shall , for th e discharg e of his duti e s, have the same powers as are by law vested in Police officers.

73. In the case of opposition by the use of violence, it shall be lawful for an executive officer to demand the assistance of any member of the Police force.

Title V

OF THE LEGAL PROFESSION

78A. For the purposes of this Title and of Title VIII of Book First of this Code, the expressions "Member State", "citizen of an ag reement State", "competent authority" and "th e Tr eaty " shall have the same meaning assigned to them in the Mutual Recognition of Qualifications Act.

79. No person shall exercise the profession of advocate without the authority of the President of Malta granted by warrant under the Public Seal of Malta.

80. Any person on being so authorized shall, before entering upon the exercise of the professi on, take before the Court of Appeal, in a public sitting of the same court, the oath of allegiance according to the form referred to in article 10, and the oath of office in the terms following:

I ............. do swear, that I will faithfully and with all honesty and exactness perform the duties of advocate in the courts of justice of Malta, to the best of my knowledge and ability. So help me God.

Amended by: XXXI. 2002.38.

Definitions in this

Title.

Added by:

XVIII. 2002.10.

Substituted by:

L.N. 248 of 2004.

Cap. 451.

Administration of advocates and restrictions in respect of members of Parliament. Substituted by: XXVII. 1977.2. Amended by:

XII. 1978,5; XXIV. 1995.38.

Substituted by: VII. 2007.10.

Oaths of allegiance and of office. Amended by: XXIV.1995.39.

81. No person shall be entitled to obtain the warrant referred to in article 79, unless -

(a) he is of good conduct and good morals;
(b) he is a citizen of Malta or of a Member State or is otherwise permitted to work in Malta under any law;
(c) he has obtained the academical degree of Doctor of Law (LL.D.) in accordance with the provisions of the Statute of the University of Malta, or a comparable degree from such other competent authority in accordance with the principles of mutual recognition of qualifications, after having studied law in Malta or in a Member State;
(d) he has, after satisfying the requirement of paragraph (c), or, in the case of persons regularly following the academical course of law in the University of Malta, at any time after the commencement of the last academic year of the said course, for a period of not less than one year regularly attended at the office of a practising advocate of the Bar of Malta and at the sittings of the superior courts;
(e) he possesses a full knowledge of the Maltese language as being the language of the courts;
(f) he has been duly examined and approved by two judges who shall issue, under their signature and seal,

Qualifications for obtaining warrant. Amended by:

IX. 1886.9; XV. 1913.28;

II. 1916.2,3; XVI. 1922.2;

XXVIII. 1935.3; LXII. 1948.2; XX. 1968.2;

L.N. 148 of 1975; XXIV. 1995.40; XVIII. 2002.10;

L.N. 248 of 2004.

a certificate attesting that they have found him to possess the qualifications above-mentioned and that he is competent to exercise the profession of advocate in the courts of Malta.

Regulations. Added by: XVIII. 2002.10. Cap. 451.

Bargaining of fees prohibited. Amended by: XXIV.1995.41.

Advocates not to enter into or make agreements or stipulations quotae litis.

Causes of disqualification. Added by:

IX. 1886.10. Amended by: XV. 1913.29;

XXXI. 1934.12; III. 1939.2;

L.N. 46 of 1965;

LVIII. 1974.68;

IX. 1976.9;

VIII. 1981.2;

XI. 1994.12;

XXIV. 1995.42;

XVIII. 2002.10;

XXXI. 2002.39;

L.N. 248 of 2004.

Cap. 9.

Disqualification to be declared by President of Malta. Exception.

81A. The Minister responsible for justice may make regulations for bringing into effect the provisions of the Mutual Recognition of Qualifications Act and subsidiary legislation issued thereunder, in relation to the mutual recognition of qualifications of advocates.

82. Save as may be provided in regulations made under article

1004, it shall not be lawful for any advocate to fix by agreement his fees in an amou nt high er or lo wer t han t hat fixed in t his Co de, except when, for some particular purpose of the contending party,
the action is restricted to an interest smaller than that on which the decision will have a bearing; in which case only it shall be lawful for the advocate to stipulate that his fees be reckoned on the basis
of the whole interest involved, or fixed at a sum higher than that fixed in this Code in respect of the action as actually instituted.
83. Advocates shall not, either directly or indirectly, enter into or make any agreement or stipulation quotae litis.
84. (1) A conviction by any competent tribunal for any crime liable to imprisonment for a term exceeding one year, other than involuntary homicide or other crime against the person excusable in terms of the Crimin al Co de shall be a ca us e of perpetua l disability to practise the profession of advocate.
(2) A person may also be disabled perpetually or for a time to practise the profession of advocate on the recommendation of the Commission for the Administration of Justice.
(3) The temporary or permanent withdrawal, by the competent authority in the Member State in which the advocate acquired the right to use the professional title, of the authorisation to practise the profession shall auto m a ticall y lead t o the ad vocate being temporarily or permanently prohibited from practising in Malta.
(4) Such disability shall be declared by the President of Malta by means of a letter to the re gistrars and to the advocate so disqualified, unless the advocate is in terdicted in the sentence itself:

Admission of Legal Procurators. Amended by:

L.N. 46 of 1965; LVIII.1974.68.

Oaths of allegiance and of office. Amended by: XXIV.1995.43.

Provided that it shall be lawful for the President of Malta at any time to remove the disability aforesaid.

85. No person may be admitted to practise as a legal procurator without the authority of the President of Malta granted by warrant under the Public Seal of Malta.

86. Any person on being so admitted shall, before commencing to practise as legal procurator, take before the Court of Appeal, in a public sitting of the same court, the oath of allegiance according to the form referred to in article 10, and the oath of office in the terms following:

I ............. do swear, that I will faithfully and with all honesty and exactness perform the duties of legal procurator in the courts of justice of Malta, to the best of my knowledge and ability. So help me God.

87. No person shall be entitled to obtain the warrant referred to in article 85 unless -

(a) he is of good conduct and good morals;
(b) he is a citizen of Malta or of a Member State or is otherwise permitted to work in Malta under any law;
(c) he has been approved by the examining board of the Faculty of Law, at a regular examination in the subjects of the course of studies to be followed by candidates for the profession of legal procurator, in accordance with the regulations of the University of Malta, or a comparable degree from such other competent authority in accordance with the principles of mutual recognition of qualifications, after having studied law in Malta or in a Member State;
(d) he has, after passing the examination referred to in paragraph (c) or at any time after the commencement of the last academic year of the said course, for a period of not less than one year, attended at the office of a practising advocate of the Bar of Malta and trained himself in the practice of the profession;
(e) he has been duly examined and approved by two judges, who shall issue under their signature and seal a certificate attesting that they have found him to possess the qualifications above mentioned and that he is competent to practise as legal procurator in the courts of Malta.

Qualifications for obtaining warrant. Amended by:

IX. 1886.11; XV. 1913.30;

II. 1954.2; XX. 1968.3; XXIII. 1971.8;

L.N. 148 of 1975; XXIV. 1995.44; XVIII. 2002.10;

L.N. 248 of 2004.

87A. The Minister responsible for justice may make regulations for bringing into effect the provisions of the Mutual Recognition of Qualifications Act and subsidiary legislation issued thereunder, in relation t o the mutual recog n itio n of qualificat ions of legal procurators.

88. The provisions of articles 83 and 84 shall apply to legal procurators.

89. (1) The Minister responsible for justice shall nominate su ch panels as he may deem fit, each panel consisting of su ch number as he m ay deem fi t of advo cates, l egal procurators and other experts, to perform the duties of curators, advocates or legal procurators ex officio and experts in the Courts of Malta and Gozo, and public auctioneers as occasion may require under this Code.
(2) The advocates and legal procurators appointed under sub- article (1) shall also be bound to give their assistance to any person who, not being entitled to the benefit of legal aid, shall apply to the competent court for such assistance, and shall satisfy the court, in such manner and by such means as the court may prescribe, that

Regulations. Added by: XVIII. 2002.10. Cap. 451.

Applicability of articles 83 and 84. Amended by: XV.1913.31.

Appointment of official curators, etc.

Amended by: XV. 1913.32; XXXI. 1934.13;

L.N. 4 of 1963; XXXI. 1966.2; XXIII. 1971.10;

XXIV. 1995.45; III. 2002.158; XII. 2009.3.

prima facie he has reasonable grounds for taking or defending or being a party to proceedings a nd that he did not succeed in engaging the services of another advocate or legal procurator:

Provided that any advocate or legal procurator appointed by the court to give such assistance as aforesaid, shall not be bound to give his assistance, unless the applicant deposits with the registrar a sum which, in the opinion of the registrar, is sufficient to cover the fees of such advocate or legal procurator.

Appointment of official curators, etc., for the Gozo court.

Amended by: XXXI.1934.14;

L.N. 4 of 1963; XXXI. 1966.2:

VIII. 1990.3.

Publication of lists.

Amended by:

VI. 1880.18;

VIII. 1990.3.

Substituted by:

XXIV. 1995.46;

XXXI. 2002.42.

Performance of duty in rotation.

90. Deleted by: III. 2002.158.

91. A list of the members of the panels appointed as aforesaid shall be published in the Gazette.

92. The persons appointed under the provisions of this Title shall perform their duties in rotation.

Order of rotation. 93. The rotation shall be according to the order in which the nam e s of t h e persons app o inted are placed o n the rota of the respective court by which the selection is to be made, unless there is some reasonable objection against the person whose turn it is on the rota, in which case the person immediately next on the rota shall be selected and the person objected to as aforesaid shall be enti tl ed to th e n e xt tu rn i n r e gard t o wh ich th er e sh al l be n o objection.

Appointment of person outside the rota.

Amended by: XXXI. 1934.15.

Gratuitous legal aid by curators. Amended by: XXIII.1971.11; XXIV.1995.47.

Misconduct or negligence of curators, etc. Substituted by: XXIV.1995.48.

94. Where, owing to impediment or challenge of the persons on the rota, the required selection of an advocate, legal procurator or accountant cannot be made from among such persons, the court shall appoint another person, although not on the rota.

95. The curators selected under the preceding articles of this Ti tle, in causes where either both parti es or th e party at who se request their selection was made have or has been admitted to sue or defend wit h the benefit of legal aid, or to be a part y to proceedings or continue such proceedings with such benefit, shall gi ve thei r servi c es g r atuit ously, savin g their ri ght to such remuneration as is expressly allowed to them by this Code out of the amount or property recovered.

96. In case of misconduct, negligence or any reasonable objection to any curator selected from the rota to perform the duties of curator or advocate for legal aid, the court shall have the power to remove him from the case and to appoint another curator from the rota in his stead:

Provided that the court shall through the registrar communicate to the Minister responsible for justice, the relevant
decree.

97. (1) It shall be an abuse in the exercise of his profession:

(a) for any advocate or legal procurator to knowingly, directly or indirectly employ or accept the services of any tout; or
(b) for any advocate to agree with a legal procurator or a notary public, or for a legal procurator to agree with any advocate or notary public, to give or to receive any share of the fees or other remuneration earned by any of them in respect of professional work; or
(c) for any advocate or legal procurator to act in contravention of any law or Code of Ethics that may be in force and applicable to him,
and any judge or magistrate shall report to the Commission for the Administration of Justice any advocate or legal procurator whom he suspects to be guilty of such abuse.
(2) In this article, the expression "tout" means any person who undertakes in return for a fee, reward or remuneration, whether in cash or in kind or for any other consideration, to find clients for any advocate or legal procurator.

Illegal practices.

Added by:

VIII. 1981.3.

Substituted by:

XI. 1994.12.

Amended by:

XXXI. 2002.44.

97A. (1) The President of Malta shall appoint judicial assistants to perform such functions as are by this Code or by any other law assigned to them.

(2) Judicial assistants shall be appointed from amongst persons who hold the warrant of advocate.
(3) The functions of judicial assistants shall include the following:
(a) to assist in the judicial process and at the request of the court to participate in the proceedings pending before a court, including any research or other work required therefor, and for the purpose of carrying out such duties and exercise such powers as they may be required or authorised to perform by such court;
(b) to administer oaths;
(c) to take the testimony of any person that is produced as witness in any proceedings;
(d) to take any affidavit on any matter, including a matter connected with any proceedings taken or intended to be taken before any court or any court or tribunal of civil jurisdiction established by law;
(e) to receive documents produced with any testimony, affidavit or declaration, including in particular a testimony, affidavit or declaration as is referred to in this Code;
(f) to hold such sittings as may be directed by the court, to meet with the advocates and legal procurators of the parties for the purpose of planning the management of the

Appointment of judicial assistants. Added by:

XXIV. 1995.49. Amended by:

XXXI. 2002.46.

lawsuit, and to issue deadlines for the submission of evidence, pleadings or other judicial acts by the parties.
(4) In the performance of their functions judicial assistants shall be assigned to a court and shall act under the direction and control of the court before which the case is pending and shall, in addition to any power lawfully assigned to them by such court, have the power to order the attendance of any person for the purpose of giving evidence or to make an affidavit or a declaration, or to produce documents, at su ch plac e a n d time as they may specify in the order.

Oath of office. Added by: XXIV.1995.49. Amended by: IV.1996.2.

97B. (1) A judicial assistant shall not enter upon the functions of his office before he has taken, before the Court of Appeal, the oath of office in the following terms:

I............................do swear that I will faithfully and with all honesty and to the best of my ability perform the duties of judicial assistant as prescribed by law.

Challenge. (2) The provisions of Sub-Title II of Title II of Book Third shall apply to judicial assistants, except that the decision on any such matter shall be taken by the court before which the case is pending.

Decisions by judicial assistants. Added by: XXIV.1995.49.

97C. Without prejudice to the provisions of sub-article (2) of article 97B, where in proceedings before a judicial assistan t a question arises relating to or connected with the same proceedings, that question shall in the first place be decided by the judicial assistant who shall without delay and in any case not later than three days from the date of the said decision, inform the court of the decision, and the decision of the judi cial assistant shall be binding unless the court shall by decree, decide otherwise.

BOOK SECOND

OF THE PROCEDURE IN THE COURTS OF JUSTICE OF

CIVIL JURISDICTION

Amended by: XXXI. 2002.47.

Nullity of judicial acts.

Reiteration of an act which is null.

Nullity of form not to be pleaded by person giving rise thereto.

Running of legal or judicial times.

GENERAL PROVISIONS

98. Any judicial act done in virtue or in pursuance of an act which is null is equally null.

99. Any act which is null may be replaced by another, provided th e peremp tory tim e withi n whi ch the act is t o be do ne has not elapsed.

100. No person may plead a nullity of form, of which he or his agent has been the cause.

101. Any legal or judicial time the running of which is

dependent on an act requiring service or publication , shall commence to run from the day on which such act has been duly served or published.

102. Where any legal or judicial time is to be reckoned from a stated day, such day shall not be considered as included in the time itself; and where it is to be reckoned by hours, the hour in which service is effected shall not be considered as included in the time.

103. In the reckoning of any time, the day is reckoned at twent y -four h ours, and the month and the year are reckoned according to the calendar.

104. Save as otherwise expressly provided, the time of twenty- four hours shall be deemed to expire on the following day at the hour established for the closing of the registry.

105. Any legal or judicial time shall run also against the party at whose request or for whose benefit such time is allowed.

106. Any legal or judicial time, not being peremptory, may be extended on good cause being shown, provided the request for such extension is made within the time the extension of which is sought.

107. It shall be lawful for the court, in cases of urgency, to abri dg e a n y l e ga l ti m e an d t o orde r th at an a c t be ca rri e d in to execution from one day to another or from one hour to another or forthwith.

108. The days referred to in the next following article shall not suspend the running of times; but if the last day of any legal or judicial time is any such day, the time shall be deemed to expire on the next following day, not being any such day.

109. (1) Court sittings may be held on such days and at such times as may be prescribed by the Minister responsible for justice by regulations made under this article and during such other time as the court may, in its discretion, fix.

(2) The registries of the courts shall be open for the filing of jud i cial acts during su ch days an d at such times as may, by regulations, be prescribed by the Minister responsible for justice under this article:
Provided that any of the aforesaid registries may by special order of the court or by order given in writing by the registrar, be opened for the filing of judicial acts on any day or at any time.
(3) The Director General (Courts) and the registrar shall abide by and fully execute any order of the court to open the court on any day and at any time as the court may specify in the order.
(4) A judicial act may be served or carried into execution on such days, at such times and in such manner as may be prescribed by the Minister responsible for justice by regulations made under this article:

Dies a quo. Amended by: IX. 1886.12.

Computation of times.

Time of twenty- four hours.

Legal or judicial time to run against both parties.

Times, other than peremptory, may be extended. Amended by:

IX. 1886.13; XXIV. 1995.50.

Abridgement of legal time in urgent cases.

Amended by: VIII. 1981.4; XXIV. 1995.51.

Public holidays not to suspend the running of times. Amended by: V.1904.7. Substituted by: VII.1974.2.

When sittings are to be held, etc. Amended by:

VII. 1876.1; V. 1904.7;

XV. 1913.33; VII. 1974.3;

XXII. 1976.4. Substituted by: XIV. 1980.3;

XXIV. 1995.52; XXXI. 2002.48.

Power to administer oaths. Amended by: XV.1913.34.

Form of oath in accordance with religious persuasion. Substituted by: XXXV. 1974.6.

Oath of witnesses and referees.

Provided that by special order of the court or by order given in writing by the registrar in cases of urgency, it shall be lawful to serve or carry into execution any judicial act on any other day or at any other time.
(5) The Registrar shall not refuse to give an order under subarti c l e (2) o r (4 ) unless he has referred the matter to the competent court for its decision.

110. Every court and every judge or magistrate shall have power to administer oaths.

111. A witness professing the Roman Catholic faith shall be sworn according to the custom of those who belong to that faith; and a witness not professing that faith shall be sworn in the manner which he considers most binding on his conscience.

112. (1) Witnesses or other persons required to take the oath shall swear to tell the truth, the whole truth and nothing but the truth.

(2) Referees shall swear faithfully and honestly to perform the duties assigned to them.

Power of court to make warning as to obligation of oath.

Oath to be taken personally.

Judicial acts accessible to all persons.

Copies.

Original acts not to be taken out. Exception. Amended by:

XXIV. 1995.53.

Acts issued in the name of the Republic of Malta. Amended by:

XI. 1977.2. Substituted by:

XXXI. 2002.49. Amended by: XXII. 2005.11;

VII. 2007.11.

113. The court, before which an oath is to be taken, shall have power to warn the party about to take the oath, as to the obligation of the oath and the consequences of perjury.

114. The oath shall in all cases be taken personally by the party to be sworn.

115. The acts of every court shall be accessible to all persons, and copies thereof shall be given out at the request of any person.

116. No original act may be given out to any advocate, legal pr ocurator, l itigant or other p er son not emp loyed in t he co urts, unless the court, for any purpose connected with the cause or for any other just reason, shall otherwise order.

117. *Every warrant of the superior courts shall be issued in the name of the Republic of Malta and shall be witnessed by a judge or by a judicial assistant so delegated for the purpose by a judge; any such delegation shall be published in the Gazette:

Provided that no such delegation shall be made in respect of a warrant of prohibitory injunction.

Signing of acts by judge or magistrate. Amended by:

XV. 1913.35; XXXI. 2002.50.

118. Without prejudice to the provisions of article 117, any act requiring the signature of a judge or magistrate shall be signed by the judge or magistrate of the respective court or, where the court con s ists of mo re t h an o n e ju dg e or mag i st rate, by o n e o f such judges or magistrates.

*Vide article 11(2) of Act VII of 2007 for commencement.

119. Notwithstanding the provisions of the last preceding article, any judge may give the requisite directions upon any ex parte appl ication fil e d in any con t entio us matt er in any o f th e superior courts, and may sign any warrant to be issued under the authority of any of the said courts.

119A. Any person shall, when filing in the registry of the court any act or docum ent which requires service to another party, besides the original copy, file such number of copies as is equal to t h e nu m b er of per s o n s wh o a r e to be ser v ed w ith the act or document.

120. Revoked by Act XXXI.2002.52.

121. Revoked by Act XXXI.2002.52.

122. Revoked by Act XXXI.2002.52

123. Vacations as may be established by regulations under arti cl e 10 9 shall not be a bar to the issue or execution of any warrant, whether executive or precautionary.

124. In this Code, the phrase "working days" does not include

Saturdays.

Any judge may give directions on ex parte applications. Amended by: XV.1913.36.

Number of copies to be filed.

Added by: XXXI. 2002.51.

Forensic year. Sessions. Amended by: XI. 1859.3; XV. 1913.37.

Vacations in superior courts. Amended by: XI.1859.3; XV.1900.1; II.1903.1;

VIII. 1990.3; XXIV. 1995.54.

No sittings to be held during recess. Exceptions. Amended by:

XI. 1859.3; VII. 1880.8; XV. 1913.38; VIII 1990.3.

Issue of warrants during recess. Amended by:

II. 1940.3; XXXI. 2002.53.

Meaning of "working days". Added by:

VII. 1974.4.

PART I

OF THE ORDINARY MODE OF PROCEDURE IN CONTENTIOUS

MATTERS

GENERAL PROVISION

125. (1) In the superior courts and in the Court of Magistrates (Go z o) in it s superi or jurisd ic tion, proceedings are ordinari ly instituted by application, whether sworn or not, as provided by law.

(2) In the Court of Magistrates (Malta), and in the Court of Magistrate s (Gozo) in its inferi or j uri sdi ct io n, proc eed in gs are instituted by application.

Procedure in superior courts and inferior courts. Amended by:

XIII. 1964.17; VIII. 1990.3;

XXIV. 1995.55; XXII. 2005.12;

I. 2006.11.

Substituted by: XXIV. 1995.56.

Title I

OF THE MODE OF PROCEDURE BY APPLICATION FOR APPEAL

141. Repealed by: XXIV. 1995.57.

142. (1) Save as otherwise provided by this Code or by or under any other law, the mode of procedure before an appellate court is by application.

(2) The application shall contain the prayer that the judgment appealed from or any part thereof be reversed or varied.

Closing of written pleadings in first instance.

Amended by: XXXI. 1934.16.

Ordinary procedure before appellate court. Amended by:

IX. 1886.17; XV. 1913.41;

XIII. 1964.18; XXIV. 1995.58.

143. (1) The application for the reversal of a judgment shall contain a reference to the claim and to the judgment appealed from together with detailed reasons on which the appeal is entered and a request that the said claim be allowed or dismissed.

(2) The application for the variation of a judgment shall contain a reference to the claim and to the judgment appealed from and shall distinctly state the heads of the judgment complained of together with detailed reasons for which the appeal is entered and, in conclusion, shall state, specifically, the manner in which it is desired that the judgment be varied under each head.
(3) The application for the reversal, annulment or variation of a de cree shall contain a refere nce to the contents of the dec r e e appealed from together with the detailed reasons for such reversal, annulment or variation.
(4) In the case mentioned in this article a request for reversal shall be deemed to include a request for annulment and variation of a judgment or decree, and a request for annulment shall be deemed to include a request for a reversal and variation of a judgment or decree.
(5) The default of compliance with any of the requirements of sub-articles (1), (2) and (3) shall not make void the application; but the court shall, in any such cas e, m a k e an or der di r ecti n g t h e appellant to file, within two days, a note containing such particulars as are required by law and which have not been duly stated in the application.
(6) The cost of the order and of the filing of the note shall be borne by the appellant.
(7) The provisions of sub-articles (5) and (6) shall, in the case referred to in article 240, apply to the answer.

Contents of application of appeal. Amended by: IX. 1886.17; XV. 1913.42; XXVII. 1979.2. Substituted by: XXIV. 1995.59.

144. (1) An appeal may be entered by any party against all the other parti e s o r again s t any o n e of them. The appe llant shall indicate in the application of appeal the parties against whom the appeal is directed. The application of appeal shall be served on all the parties but only the parties against whom the appeal is directed shall, within the time of twenty days, file their respective answer containing the reasons why the appeal should be dismissed.

(2) In the case of a cross appeal in terms of article 240, the party against whom the cross appeal is directed shall within the

Service of application of Appeal. Time for answer.

Amended by: IX. 1886.17;

XV. 1913.43; XXVII.1979.3. Substituted by:

XXIV 1995.60.

Time for answer in case of cross appeal.

included in the cross appeal.

Production of documents. Amended by: IX. 1886.17; XXIV.1995.61.

Closing of pleadings in appeal. Amended by: IV. 1868.3; IX.1886.17;

XXXI. 1934.17; XXIV. 1995.62.

145. All documents in support of the demand or defence shall be produced together with the application, answer or reply.

146. (1) The written pleadings in appeal shall be deemed to be closed by the answer to the app licati on, o r, i n d e faul t, on the expiration of the time allowed for such answer.

(2) Where, according to the provisions of article 144(2), a reply is allowed, the written pleadings shall be deemed to be closed by the reply, or, in default, on the expiration of the time allowed for such reply.
(3) The default of any party in filing an answer or reply within the prescribed time limits shal l not preclude such party from appearing before, or making submissions to, the court during the hearing of the appeal.

Power of court to order additional pleadings. Amended by:

IX. 1886.18.

Time for filing additional pleadings.

147. (1) The court may, after the opening of the hearing, whenever, under the circumstances, it shall deem it expedient so to do, make an order allowing any of the parties to file an additional written pleading with leave to the opposite party to file, if he so desires, another written pleading in reply, within such times as the court shall direct.

(2) If no time is fixed by the court, the party allowed to file such additional written pleading shall do so within ten days from the day of the order, and the opposite party shall file his answer within an equal time to be reckoned from the service of the former written pleading. Such times may be extended only once, on good ground being shown.

Time within which defendant may admit claim. Amended by: XI.1859.4;

IX.1886. 19; XXXI.1934.18.

Time for filing written pleadings not to run during vacations. Amended by:

IV. 1862.7; XXXI. 1934.20.

Cases in which production of documents is permitted outside prescribed time. Amended by:

IX. 1886.20; XV. 1913.44; XXIV.1995.64.

148. Repealed by: XXIV. 1995.63.

149. Repealed by: XXIV. 1995.63.

150. (1) Where any document has not been produced as provided in article 145, its production shall only be allowed -

(a) if, notwithstanding all due diligence, the document could not be obtained before the filing of the pleading with which it should have been produced, and the filing of such pleading could not, without prejudice, be delayed; or
(b) if the court is satisfied of the necessity or expediency
of having the document before it:
Provided that, in any such case, the court may, in adjudging the costs of the cause, take into account the tardy production of the document; or
(c) if the opposite party, by a separate note, or by an annotation in the margin or at the foot of the note by which the document is produced, gives his consent thereto; or
(d) if it is proved, by oath or otherwise, that the party producing the document, had not been aware of it, or could not, with the means provided by law, have produced it, in due time; or
(e) if the document to be produced is a book or other paper in the original, copies whereof or extracts wherefrom, relating to the matters at issue, were produced in due time; or
(f) before any referee, if bearing on the subject-matter of his reference.
(2) Any necessary demand concerning any collateral issue shall, however, be allowed at any stage of the cause, as occasion may require.

Demands on collateral issues.

151. The registrar shall note down in a book to be kept for the purpose, the causes the written pleadings whereof shall have been closed as provided in article 146, following the order of the date on which the written pleadings were closed.

152. (1) The registrar, following the order mentioned in the last preceding article, shall, as soon as may be, publish such causes in the list of cau ses set d o wn for hearing, indicating that su ch causes are being set for hearing trial for the first time, and shall cause the parties to be served with a notice of the day appointed by the court for the hearing of the cause which day shall be as soon as possibl e but not lat e r t h an six m onth s after th e fi lin g of th e application for appeal and the payment of the deposit:

Pr ov ided t h at any of t h e par tie s m a y b y a no te fi led in th e regi stry exempt the registrar from the duty of service of such notice.
(2) The said notice shall be in writing. If the appellant is not ser v ed wi th the said not ice, th e registrar, unl ess he has been exempted as stated in sub-article (1), shall, within ten days, inform in writing the advocate of such party that the notice has not been served, and the advocate shall sign a copy of the receipt of such communication:
Provided that no action shall lie against the advocate for failure to inform any such party.
(3) It shall be lawful for the court, for just cause, to order the hearing of a cause the written pleadings whereof have been closed, irrespective of its turn.

Cause book. Amended by: IX. l886.21; XXIV. 1995.65.

List of causes set down for hearing. Parties to be served with notice of day of hearing. Amended by:

XXXI. 1980.2; XXIV. 1995.66;

IV. 1996.3; XXII. 2005.13;

VII. 2007.12.

Notice to be delivered in writing.

Power of court.

pleadings not to debar party from appearing at hearing of cause. Amended by:

IV. 1862.8; XXXI. 1934.21.

debar the party, who was entitled to file such written pleading, from appearing at the hearing of the cause and producing his evidence, provided he shows to the satisfaction of the court a good reason for such default.

Substituted: XXII. 2005.14.

Proceedings by sworn application. Substituted by: XXVII. 1979.4; XIII. 1985.2. Amended by:

XXII. 2005.15.

Title II

OF THE MODE OF PROCEDURE BY SWORN APPLICATION

154. (1) The procedure by sworn application is considered to institute a cause, when the court issues or gives an order to a party to appear before it on the day and at the hour appointed, in order to show cause why th e cl aim contained i n the sworn ap plication should not be allowed.

(2) In the appointment of such day allowance shall be made for the time required for the preliminary written procedures of the case to be closed, provided that in urgent cases the court may appoint a day for the trial of the case before the close of the preliminary written procedures.

Form of writ of summons. Amended by:

IX 1886.22. Substituted by:

XXVII. 1979.5.

Drawing up and contents of sworn application. Amended by:

IX. 1886.22; XXXI. 1934.22;

XXVIII. 1935.4; XXVII. 1979.6;

XIII. 1985.3; XXIV. 1995.67; XXII. 2005.17;

I. 2006.12.

155. (Repealed by Act XXII. 2005.16.).

156. (1) The sworn application shall be prepared by the plaintiff and shall contain -

(a) a statement which gives in a clear and explicit manner the subject of the cause in separate numbered paragraphs, in order to emphasise his claim and also declare which facts he was personally aware of;
(b) the cause of the claim;
(c) the claim or claims, which shall be numbered;.and
(d) in every sworn application, the following notice shall be printed in clear and legible letters immediately under the Court heading:
“Whosoever is in receipt of this sworn application in his regard shall file a sworn reply within twenty (20) days from the date of service thereof, which is the date of receipt. Should no written sworn reply be filed in terms of the law within the prescribed time, the Court shall proceed to adjudicate the matter according to law.
It is for this reason in the interest of whosoever receives this sworn application to consult an advocate without delay that he may make his submissions during the hearing of the case.”.
(2) Such documents as may be necessary in support of the claim shall be produced together with the sworn application.
(3) The sworn application shall be confirmed on oath before the registrar or legal procurator appointed as Commissioner for Oaths under the Commissioners for Oaths Ordinance.
(4) The plaintiff shall together with the declaration also give the nam e s of th e w itn esses h e i n ten d s to prod uce in evi d en ce stating in respect of each of them the facts and proof he intends to establish by their evidence.
(5) Where several actions are brought together as provided in article 161(3), (4) and (5), it shall at least be one of the plaintiffs who shall confi r m o n oath befo re the registrar or th e leg a l procurator appointed as Com missioner for Oaths under the Commissio n ers for Oat h s Or dinance , an d t h e pro v isio ns of subarticle (1)(a) shall apply.
(6) The application shall be served on the defendant.
(7) The registrar shall not receive any application which does not satisfy the elements of subarticle (1) and the court shall not allow any witness to be produced unless his name shall have been given together with the application.
If the necessity of producing a witness arises at any time after the filing of the sworn application or if the opposite party gives his consent in the manner prescribed in article 150(1)(c), or if the court deems it in the interest of jus tice to hea r a pa rticular witness, the court may allow such witness to be heard.
(8) When the proof intended to be established by each witness is not stated or adequately stated in the declaration, the court shall on the first day appointed for the pretrial hearing order the plaintiff to indicate adequately the proof he intends to establish by each witness within a time to be fixed by the court.

Production of documents.

Cap. 79.

Cap. 79.

156A. Repealed by: XXIV. 1995.68.

157. It shall be the responsibility of the plaintiff to cause a copy of the sworn appl icat ion , any affid a vi t o f the pl aint iff and of th e documents attached with the application.

Cumulative writ of summons.

Added by: XIII. 1985.4.

Service of sworn application. Amended by:

IX. 1886.23;

XV. 1913.45,46;

XXXI.1934.23, 24.

Substituted by:

XXVII. 1979.7;

XXIV. 1995.69;

XXXI. 2002.55.

Amended by:

XXII. 2005.18.

Sworn reply and note of admission, filing, etc. Amended by:

IX. 1886.24; XV. 1913.47;

XXXI. 1934.25; XXVIII. 1935.5. Substituted by:

XXVII. 1979.9. Amended by: XXXI. 1980.3;

XV. 1983.2; XXIV. 1995.70; XXII. 2005.19.

Cap. 79.

158. (1) The defendant shall file his sworn reply within twenty days from the date of service, unless he intends to admit the claim.

(2) Where the defendant intends to admit the claim wholly and unconditionally, he shall file a note to that effect.
(3) Otherwise, he shall file a sworn reply containing -
(a) any such pleas as would be taken to be waived if not raised before the contestation of the suit;
(b) a clear and correct statement of the pleas on the merits of the claim or claims without reference to authorities;
(c) the defendant, or one of the defendants if there are more than one defendant, shall also confirm on oath in the sworn reply with numbered paragraphs, all the facts concerning the claim, denying, admitting or explaining the circumstances of fact set out in plaintiff ’s declaration, while stating which facts are within his own knowledge.
(4) The sworn reply shall be confirmed on oath before the registrar or legal procurator appointed as Commissioner for Oaths under the Commissioners for Oaths Ordinance. The defendant shall also indicate the names of the witnesses he intends producing and to state with regard to each one of them what he intends proving by means of their evidence. There shall also be filed together with the sworn reply such documents as may b e required to sustain the pleas.
(5) The registrar shall not receive any sworn reply which is not accompanied by the listed requirements in subarticle (3), and the court shall not allow any witness to be produced whose name shall not have been gi ven i n such declaration. If t h e n e cessit y of producing a witness aris es at an y t i m e af te r th e fi li n g of t h e declaration, or if the opposite party gives its consent in the manner prescribed in artic l e 150(1)( c ), or if the court deems it in the interest of justice to hear a particular witness, the court may allow such a witness to be heard.
(6) When the proof intended to be established by each witness is not stated or adequately stated in the declaration, the court shall on the first day appointed for th e pretrial hearing order the defendant to indicate adequately the proof he intends to establish by each witness within a time to be fixed by the court.
(7) Where the defendant is absent or is a minor or a person incapable according to law or a vacant inheritance, and is represe n te d by an atto rney or a c u rator, then, instead of the declaration referred to above, a declaration may be made to the effect that the facts of the case are unknown and that it has not been possible to obtain the necessary information to contest the claim.
(8) Simultaneously with the filing of the note admitting the claim or of the sworn reply, as the case may be, the defendant shall c a us e an ide n tical c o py thereof, cer tif ied b y h imself or his advocate, to be served through the registry on the plaintiff or his advocate.
(9) Non-compliance with the provisions of sub-article (7) may be taken into account by t h e court i n the ap plicati on o f th e provisions of article 223(3).
(10) If the defendant makes default in filing the sworn reply mentioned in this article, the court shall give judgment as if the defendant failed to appear to the summons, unless he shows to the satisfaction of the court a reasonable excuse for his default in filing the sw orn rep l y w ith in t h e p r es cribed time. The court shall, however, before giving judgement allow the defendant a short time which may not be extended within which to make submissions in writing to defend himself against the claims of the plaintiff. Such submissions shall be served on the plaintiff who shall be given a short time within which to reply.
(11) The sworn reply, after the conclusion of the evidence of the plaintiff and before the defendant produces his evidence, may be amended by means of a separate statement either withdrawing any of the pleas set up or adding new pleas, saving those pleas which may be set up at any stage of the proceedings.
(12) With the filing of the sworn reply or on the expiration of the terms l a id do wn in sub - articl e (1), th e preli m i n ary w r i tten procedures shall be deemed to be closed, and articles 151 and 152 shall apply.
(13) Notwithstanding the foregoing provisions of this article, where the court has appointed a day for the trial of the case before the time allowed for the filing of the sworn reply in accordance with this article, the defendant shall file the sworn reply not later than the time at which the case is first heard, and may also file them before the court at such hearing and serve a copy thereof on the plaintiff by delivering a copy to him or his advocate at that same hearing.

159. (1) Except a reference to the law, the sworn application and the sworn reply, which are to be in a summary form, may not contain any comment nor any matter which is not necessary for a statement of the material facts as regards the sworn application, or for a rebuttal of those facts or for an indication of the pleas as regards the sworn reply.

(2) In the case of non-compliance, the court may order any superfluous matter to be struck out, or the written pleading to be rem oved from the record and replaced by another made in accordance with the provisions of this article.

The sworn application and the reply not to contain comments or superfluous matter. Amended by:

IV. 1862.9; VI. 1880.20;

IX. 1886.24; XXII. 2005.20.

160. Any party intending to produce a witness in any p r oceed i ng s befor e an y cou r t may, to gether with th e swor n application or the sworn reply, as the case may require, file in the registry of such court an affidavit taken by such witness before a j u di ci al assi stan t or an y ot her p e rso n aut h o r i s ed by law t o administer oaths, and a copy of such affidavit shall be served on the other party.

Affidavits of witnesses. Amended by: XV. 1913.48. Substituted by: XXIV. 1995.71. Amended by: XXII. 2005.21.

Mode of procedure in the Civil Court, First Hall, and in the Court of Magistrates (Gozo) in its superior jurisdiction. Amended by:

XV. 1913.49; XIII. 1964.19;

VIII. 1990.3. Substituted by: XXIV. 1995.72.

Amended by: XXII. 2005.22.

Title III

OF THE ORDINARY MODE OF PROCEDURE IN CONTENTIOUS

MATTERS AS APPLIED TO THE RESPECTIVE COURTS

161. (1) In the Superior Courts and in the Courts of Magistrates in Malta and in Gozo, proceedings are ordinarily taken by application while those in the superior shall be sworn.

(2) Proceedings may also be taken by application in the cases prescribed by or under a law.
(3) Two or more plaintiffs may bring their actions by one sworn application or by one not sworn application as the case may be, if the actions are connected in respect of the subject matter thereof or if the decision of one of the actions might affect the decision of the other action or actions and the evidence in support of one action is, generally, the same to be produced in the other action or actions. The cause and subject matter of the actions shall be clearly and specifically stated in respect of each plaintiff.
(4) Nevertheless, any of the actions so brought together shall be tried separately at the request of a plaintiff with regard to his act i on ; an d the co urt may al so o r d e r th at any actio n be t r ied separately when i t is n o t exp e d i ent t h at th e actio ns of all th e plaintiffs be tried together. Any such order may be made at any stage of the proceedings before final judgement.
(5) Where the several actions are brought together as provided in sub-article (3) they shall be taken cumulatively for determining the competence of the court. Such court shall remain competent in respect of any action separated in accordance with sub-article (4).

Proceedings by writ of summons. Amended by: XI.1859.5; XV.1913.50.

Mode of procedure in Commercial Court and in Gozo court in its superior commercial jurisdiction. Amended by: XI.1859.6; XV.1913.51; VIII.1990.3.

Nullity of proceedings. Amended by: XI. 1859.6. Substituted by: XXIV. 1995.75. Amended by: XXII. 2005.23.

162. Repealed by: XXIV. 1995.73.

163. Repealed by: XXIV. 1995.74.

164. (1) Saving the provisions of article 175, nullity shall ensue if proceedings which should have been instituted by sworn application or by application of appeal are instituted by any other judicial act.

(2) No nullity shall ensue if a cause which should have been instituted by application is instituted by sworn application:
Provided that any additional costs incurred shall be borne by the plaintiff:
Provided further that the provisions of this subarticle shall apply where in accordance with any law other than this Code proceedings are to be instituted by application.

165. It shall be lawful for the court, on the case being closed, at the request of either of the parties, to grant leave for filing, within a tim e to be fi xed by the co urt , a writ ten p l eading contai ning a summary of his submissions provided the opposite party shall not show that such leave would cause a delay to his prejudice.

166. Where leave as provided in the last preceding article is granted to either of the parties, the opposite party shall be entitled to file in reply another written pleading within a time equal to that which shal l have b e en fi xed by the cou r t as aforesaid, to be reckoned from the day of the service of the written pleading for the filing of which the court shall have granted leave.

166A. (1) In actions for the recovery of a debt certain, liquidated and due not consisting in the performance of an act, and where the amount of the debt does not exceed twenty-three thousand an d two hundred an d ninety-t hree eu ro and sevent y-three cents (23,293.73), or such other sum as may be established from time to time by Order in the Gazette by the Minister, it shall be lawful for the creditor to proceed in accordance with the following subarticles of this article:

Provided that where the debt is not liquidated the creditor may proceed in accordance with this article if he limits his debt to an amount not exceeding twenty-three thousand and two hundred and ninety-three euro and seventy-three cents (23,293.73) and expressly renounces to any part of his claim that may upon liquidation exceed the said sum of twenty-three thousand and two hundred and ninety- three euro and seventy-three cents (23,293.73), or such other sum as may be established from time to time by Order in the Gazette by the Minister:
Provided further that the creditor may only proceed according to this article if the debtor is present in Malta and is not a minor or a person incapacitated according to law or if the debt is not due by a vacant inheritance. The appointment of curators under Title XI of Book Third of this Code shall not apply to proceedings under this article:
Provided further that, without prejudice to the provisions of the Motor Vehicle Insurance (Third Party Risk) Ordinance, when a debt to which this article applies is covered by an insurance policy the insu red shal l, wi tho u t pr ejud ice to that sti pul ated in th e insurance policy, within fifteen days from service upon him of the judicia l letter made in accordance wi th this a rtic le, give to the insurer not ice in writ ing of t h e said j udicial letter and o f any p a r ticu l ars of th e cl aim o f which he i s aware. In defaul t, an y executive title obtained in accordance with this article shall have no effect with regard to the insurer.
(2) The creditor shall proceed by filing a judicial letter which shall be drawn up in the form established by legal notice by the Minister responsible for Justice and the content of which shall be confirmed on oath by the creditor, either before the registrar or legal procurator appointed as Commissioner for Oaths under the Commissioners for Oaths Ordinance, to be served upon the debtor wherein shall be stated clearly, under pain of nullity, the cause of

Leave to file written submissions. Amended by: XI.1859.6; XXXI. 1934.26.

Written submissions in reply.

Amended by: XI. 1859.6;

XXXI. 1934.27.

Special procedures in respect of

certain unopposed claims etc.

Added by:

IX. 2004.4.

Amended by:

XXII. 2005.24;

VII. 2007.13;

L.N. 407 of 2007.

Cap. 104.

Cap. 79.

the claim, the rea s ons why the c l aim sh ou ld be up hel d , an d a statement of facts in support of the claim:
Provided that subarticles (3), (5) and (6) of article 187 of this Code may not be availed of to ef fect the service of the aforesaid judicial letter.
(3) The judicial letter shall also on pain of nullity contain an intimation to the debtor that if he does not reply within thirty days from service upon him of the said judicial letter by presenting a note in the record of the said judicial letter rebutting the claim and which note may be signed and presented in court by the debtor hi msel f wi th ou t t h e si gn atu r e of an A dvo cate or of a Le gal Procurator being required, such official letter shall, constitute an executive title:
Provided that:
(a) the debtor may in such note admit the claim in part only and oppose it in other parts, and where the claim is opposed in part only it shall be deemed admitted to the extent that it has not been so opposed;
(b) where the debtor shall have opposed a claim or part of a claim which is subsequently upheld, the costs relative to the claim or part thereof opposed and subsequently upheld shall be borne by him;
(c) the costs of any claim or part thereof that is opposed and not subsequently upheld shall always be borne by the creditor;
(d) where the debtor has duly opposed the claim, the special procedure contained in this article may not be used again against the debtor as regards the same claim contained in the judicial letter served on the debtor; and
Cap. 104. (e) where the claim arises under the Motor Vehicle Insurance (Third Party Risk) Ordinance the said judicial letter shall under pain of nullity be also notified to the authorised insurance which shall have the same rights under this article as though it were the debtor as aforesaid.
(4) Where the debtor does not oppose the claim, within thirty days from the notification thereof to the debtor, or where the debtor only opposes the claim in part within the aforesaid t e rm , the judicial letter shall for the purposes of any law in respect of the claim so unopposed or the part therein so unopposed, constitute an executive title as if such judicial letter were included in article
253(a).
(5) Any executive title obtained according to the provisions of th is articl e in th e absence o f any opposit ion o n the p art of the debtor sh all be rescinded and d eclared nul l and void i f upon a request by application in the Court of Magistrates (Malta) or in the Court of Magistrates (Gozo), as the case may be, to be filed by the debtor within twenty days from the first service upon him of any
executive warrant or other judicial act based on the said title, the court is satisfied that:
(i) the debtor was unaware of the said judicial letter because he was not duly notified; or
(ii) the judicial letter did not contain the requirements laid down in subarticles (1), (2) or (3):
Provided that the said application shall be appointed for hearing within two weeks.
(6) No opposition other than that specifically provided for in subarticle (5) shall stay the issue or execution of any executive act o b tained thereund er or the paying out of the proceeds of an y warrant or sale by auction carried out in pursuance thereof.

166B. (1) A judicial letter issued in terms of article 166A shall not constitute an executive title unless it is registered according to the provisions of this article which shall apply to the registration of such judicial letters as executive titles.

(2) The applicant for the registration of a judicial letter which qualifies as an executive title shall present to the Registrar of the Court a legal copy of the judicial letter, includ ing evidence of service, and a copy of any response received thereto, if any.
(3) Upon receipt of the documents described in subarticle (2) th e Regi strar shall examine the documents presented and shall verify wh eth e r t h e deb t o r has fil e d a n o t e o f re pl y w i t h i n th e st ipu lated tim e and if he i s satis fied that the conditions for the registration of the judicial letter as an executive title subsist he shall proceed to register the documents presented in a register to be known as the Register of Judicial Letters as Executive Titles which shall be maintained by the Registr ar f or the purposes of article
166A.

Registration of Executive Titles obtained pursuant to article 166A. Added by:

IX. 2004.4.

167. (1) In actions within the jurisdiction of the superior cou r ts or th e C o u r ts of M a g i st ra tes ( G o z o) in i t s su per i or jurisdiction, where the demand is solely -

(a) for the recovery of a debt, certain, liquidated and due, not consisting in the performance of an act; or
(b) for the eviction of any person from any urban or rural tenement, with or without a claim for ground rent, rent or any other consideration due or by way of damages for any compensation, up to the date of the surrender of the tenement,
it shall be lawful for the plaintiff to pray in the sworn application that the court gives judgment allowing his demand, without proceeding to trial:
Provided that the plaintiff shall, in his declaration made in terms of article 156(3) state that in his belief there is no defence to the action:
Provided further that the plaintiff may also file a sworn

Special summary proceedings. Repealed by:

IX. 1886.25.

Re-enacted by:

XV. 1913.52.

Amended by:

XXXI. 1934.28;

VIII. 1990.3;

XXIV. 1995.76;

IV. 1996.16;

XXII. 2005.25;

VII. 2007.14.

affidavit of any other person, containing facts relative to the claim, and confirming that such facts are within the knowledge of such a person.
(2) In the cases provided for in this article, the sworn application shall be in writing according to the prescribed form and shall contain an order to the defendant to appear before the court, on an appointed day and at a stated time.
(3) The provisions of article 156(1)(a), (b) and (c), (2) and (3)
and of article 159 shall apply to the said sworn application.

Service on defendant. Repealed by: IX. 1886.25.

Re-enacted by: XV. 1913.52.

Amended by: XXIV. 1995.77; XXII. 2005.26.

Time for service of sworn application. Repealed by:

IX. 1886.25. Added by:

XV. 1913.52. Substituted by:

XXIV. 1995.78. Amended by: XXII. 2005.27.

168. A copy of the declaration and any affidavit and of the note of the docum en ts prod uced wit h the swo rn app lication shall be served upon the defendant, together with the sworn application.

169. In the cases referred to in article 167, the sworn application shall be served on the defendant without delay; and he shall be ordered to appear not earlier than fifteen days and not later than thirty days from the date of service:

Provided that in the case of non-observance of the provisions of this article the court shall not stop proceedings by special summary proceedings but shall give such orders as it may consider app r opri a t e so t h at the ri ghts of th e parties be not prejudiced.

Mode of service.

Added by:

XIII. 1985.5.

Substituted by:

XXIV.1995.79.

Amended by:

XXII. 2005.28.

Trial in special summary proceedings. Repealed by: IX. 1886.25.

Re-enacted by: XV. 1913.52. Amended by: XXXI. 1934.29; XXIV. 1995.80; L.N. 181 of 2006.

169A. The sworn application, the declaration and any affidavit and note produced therewith, and any order referred to in articles

168 and 169 shall be served by means of any executive officer of the courts.
170. (1) If the defendant fails to appear to the sworn application, or if he appears and does not impugn the proceedings t a ke n by t h e pl ai nt if f, o n th e g r ou nd o f irregu la ri ty o r inapplicability, or, having unsuccessfully raised such plea, does not by his own sworn evidence, or otherwise, satisfy the court that he has a prima facie defence, in law or in fact, to the action on the merits, or otherwise disclose such facts or issues of law as may be deemed sufficient to entitle him to defend the action or to set up a counter-claim, the court shall forthwith give judgment, allowing the plaintiff ’s claim. The defendant may make his submissions to im pugn the proceedings taken by plaintif f on the ground of irregularity or inapplicability by means of a note to be filed in the registry of the court or during the hearing.
(2) If the defendant successfully impugns the proceedings on the ground of irregularity, or inapplicability, or if he satisfies the court that he has a prima facie defence to the action, or discloses such facts or issues of law as may be deemed sufficient to entitle him to defend the action or to set up a counter-claim, he shall be given leave to defend the action and file a statement of defence
within twenty days from the date of the order referred to in sub- article (4), in whi c h case the defendant shall comply with the provisions of article 158 so far as applicable.
(3) Where leave to defend is given, the action shall be tried and determined, on the same acts, in the ordinary course as provided in this Code.
(4) The order giving leave to defend shall be made orally, a record thereof being kept in the proceedings.

171. (1) In the Court of Magistrates (Malta) and in the Court of Magistrates (Gozo) in its inferior jurisdiction, proceedings shall be by application which shall be according to the prescribed form and take the form of a mere notice signed by the Registrar, containing the name and the surname of the plaintiff and of the defendant, the demand of the plaintiff, and the day and hour when the defendant is to appear, besides other particulars as may from time to time be prescribed.

(2) The cause shall be summarily heard in terms of article 215. (3) Without prejudice to article 23, in the said courts, the
judgment need not contain all the reasons thereof, but may merely list the m ain p oints up on whi ch the court wo uld hav e based i ts
conclusions.

Mode of procedure in inferior courts. Amended by: XI.1859.7; VII.1880.8; XV.1913.53,54; XXIII.1971.12; XLIX.1981.6; VIII.1990.3. Substituted by: XXIV. 1995.81. Amended by:

XXXI. 2002.57; XXII. 2005.29.

172. (1) Where a reversal or variation of any judgment delivered by the Court of Magistrates (Malta) or by the Court of Magistra tes (Goz o) in its infe rio r ju risd ict i o n , is sou ght , proceedings shall in all cases be taken by application of appeal.

(2) The application of appeal as well as any other subsequent act may even be signed by the appellant or by the respondent only.

Mode of procedure in appeals from judgments of inferior courts. Amended by:

XI. 1859.8; VII. 1880.8;

IX. 1886.26; XV. 1913.56; XXVII. 1979.10;

VIII. 1990.3; XXIV. 1995.82; XXII. 2005.30.

173. (1) The court may, in order to ensure full compliance with all matters of procedure, or to seek more detailed information, or to expedite or facilitate proceedings or to avoid the unnecessary appearance of parties or witnesses, give in camera all such orders and directives it may think fit, and it shall be sufficient that such orders or directives be communicated by the registrar even by letter to the advocates or legal procurators of the parties, which letter is to be handed personally to such advocate or legal procurator, and, by post, to the parties themselves. This provision shall apply to any stage of the proceedings before judgment is delivered. An appeal from such orders or directives, where admissible, may be entered only after the definitive judgment and together with an appeal from such judgment, and such orders or directives may not be challenged before the definitive judgment is delivered.
(2) Without prejudice to the foregoing provisions of this article the court may, at any stage of the proceedings -
(a) either on its own motion or on an application by any party to the proceedings, direct that the evidence of any person intended to be produced as a witness be

Orders in camera. Amended by:

VII. 1880.8;

IX. 1886,27;

XV. 1913.57.

Substituted by:

XXVII. 1979.11.

Amended by:

XXIV. 1995.83;

XXXI. 2002.58;

XVI. 2004.33;

VII. 2007.15.

Cap. 474.

taken before a judicial assistant at such place and time under such conditions as may be specified in the order;
(b) on an application by any party to the proceedings, desiring to confirm a fact stated in the application, or in a note accompanying it, by the affidavit of a person named by the party, order the person so named to appear for that purpose before a judicial assistant at such place and time as may be specified in the order;
(c) either on its own motion or on a note filed by any party to the proceedings, direct that proceedings be stayed for such period as it considers appropriate, and refer the parties to a mediator in accordance with the Mediation Act.
(3) In the case of an order given under subarticle (2)(b), the judicial assistant shall ask the person named whether he confirms or denies each fact specified in the application or note and shall m a ke a record of the replies g i ven togeth er w ith an y ot her statement, if any, qualifying his reply, and cause such record to be confirmed on oath by the person aforesaid. The judicial assistant shall insert the affidavit in the records of the case and cause a copy thereof to be served on the parties.
(4) When an application as in referred to in sub-article (2)(b) is filed together with any written pleading referred to in article 160, the Court may direct that the service of such written pleading shall be suspended for such period, not exceeding three months, as the court may determine.

Contents of written pleadings. Amended by:

XV. 1913.58; XXXI. 1934.30;

XXIII. 1971.13; XXVII. 1979.12; VIII. 1990.3,4;

XXIV. 1995.84; XXXI. 2002.59; XXII. 2005.31.

Title IV

PROVISIONS APPLICABLE TO WRITTEN PLEADINGS AND OTHER

ACTS OF PROCEDURE

174. (1) Every written pleading shall contain -

(a) an indication of the court or section thereof in which the pleading is filed, and, in the case of the Court of Magistrates (Gozo), an indication of the jurisdiction of the court;
(b) the name and surname of the party pleading and of the party against whom the pleading is directed, and the designation, if any, of the capacity in which the parties appear:
Provided that in any case as is referred to in article 181(1), it shall be sufficient to designate the office of the party pleading or of the party against whom the pleading is directed, as the case may be;
(c) the description of the pleading; and
(d) if the pleading refers to an action already brought before any of the superior courts, the number of that sworn application to which it refers.
(2) Every written pleading or other act requiring service, must be accompanied by:
(a) the identity card number, if any, if the person is pleading in his personal capacity;
(b) the company number if the person pleading is a partnership or company registered in accordance with the Companies Act;
(c) a proper and full indication of the place of residence or business of the party pleading and the professional address of his advocate and, or, legal procurator;
(d) a proper and full indication of the place of residence or business and of the party against whom the pleading or act is directed;
(e) any other particulars as may serve to identify the said parties as may be established by law or regulation.

Cap. 386.

175. (1) The court may, at any stage of the proceedings, at the requ est of any of the p a rti e s, un til jud g m en t i s deliv ered after hearing where necessary the parties, order the substitution of any act or permit any written pleading to be amended, either by adding or striking out the name of any party and substituting another name therefor or by correcting any mi st ake in the name or in th e character of the parties, or by correcting any other mistake or by causing other submission of fact or of law to be added even by separate note, provided that no such substitution or amendment shall affect the substance either of the action or of the defence on the merits of the case.

(2) Any court of appellate jurisdiction may also order or permit, at any time until judgment is delivered, the correction of any mistake in the application by which the appeal is entered or in the answer, including any mistake in the indication of the court w h ich del i vered t h e deci si on ap p e aled from, i n th e name o r character of the parties, or in the date of the judgment appealed from.
(3) Any judicial or administrative omission or mistake in a judicial act may until the court shall have delivered judgment and disposed of the case be remedied by a court of its own motion.

Power of court to order or permit amendment of written pleadings. Amended by: XV.1913.59; XIII.1964.20. Substituted by: XXIV.1995.85.

176. (1) Pleadings shall be printed, type-written or written in ink:

Provided that in every case they shall be drawn up in clear and easily legible c harac te rs , withou t blank spaces, in terlinear words, abbreviations or erasures , and , ex cep t wi th th e wr it ten authority of the registrar given before the filing of the act, without corrections, alterations or additions.
(2) Any quantity, sum or measure shall, at least where it first occurs in the pleading, be expressed in words.
(3) The copies of the pleadings, as would be required for the service thereof, shall be signed by the same persons as the original.

Mode of drawing up pleadings. Amended by: XV.1913.60. Substituted by: XIX. 1965.7. Amended by: XXIV. 1995.86; XXXI. 2002.60.

"With costs." 177. The words "with costs" shall in all cases be deemed to be included in any written pleading where costs may be asked for.

Signing of written pleadings. Amended by: XXIV.1995.87; XXII. 2005.32.

Where, when and how written pleadings are filed. Amended by:

VII. 1856.1; XV. 1913.61; VIII. 1990.3; XXXI. 2002.62.

Persons who may file written pleadings. Amended by:

IX. 1886.28; XV.1913.62;

XXIII.1971.14; XLVI.1973.108; XXIV.1995.88.

178. The written pleadings and the applications whether sworn o r no t shal l b e si gn ed by t h e advocate and also by the le gal procurator, if any.

179. Written pleadings shall be filed in the registry of the respective court during the time in which, according to the regulations, the registries are kept open.

180. (1) Subject to the provisions of article 181, written pleadings may be filed -

(a) personally by the party pleading in his own name, or by the person pleading in a representative capacity as the parent of the children placed under his paternal authority, or as the tutor, curator, administrator of the community of acquests, executor, head of a department or other public administrator, or as attorney on behalf of any church, community, hospital, or other pious institution or as administrator of property under litigation, or as partner or representative of a commercial firm, or as any of the persons mentioned in article 181A(2) in the case of a body having a distinct legal personality, or as agent or representative of any other lawful association, or as attorney on behalf of persons absent from the Island, either of Malta or Gozo, in which the written pleading is filed;
(b) by a legal procurator;
(c) by any other partner of a commercial firm to which the written pleading refers;
(d) by an ascendant, descendant, brother or sister, uncle or aunt, nephew or niece, father-in-law, mother-in-law, son-in-law, daughter-in-law, husband or wife, appointed as an attorney for the purpose, by the party pleading whose signature is duly attested in accordance with article 634(2);
(e) by any joint party to the suit;
(f) by an advocate, if the written pleading is to be filed in any of the inferior courts, or in the Court of Appeal in cases of appeal from judgments of the inferior courts.
(2) Nevertheless, no written pleading containing a waiver of the proceedings or an admission of the claim or the consent for the withdrawal of any deposit, may be filed by any person other than -
(i) the persons mentioned in sub-article (1)(a) and
(c), or
(ii) an attorney specially authorized for the purpose, or
(iii) the advocate, if any such written pleading is filed during the hearing of the cause.

181. (1) When a written pleading is to be filed by the Prime Minister or other Minister, by a head of department or other public administrator, it shall be sufficient if there is designated in such p l eading the of fice of the perso n fili ng it and it shall n o t be necessary to name the perso n for the time being holding such office.

(2) No formality shall be necessary in the records of a case or in any court pr oceedings upon an y change in the person of the holder of any office designated as aforesaid or on the appointment of any person in an acting capacity in any such office or where such office is merged with another office.
(3) The provision of the last preceding sub-article shall apply also where there is named in any written pleading the person for the time being filling the office designated in such pleading, provided that such office is clearly designated.
(4) The provisions of sub-articles (1), (2) and (3) shall apply also in respect of the pa rty a ga inst whom th e pl eadi ng is to be directed where such party is the holder of an office referred to in the said sub-article (1).

Written pleadings filed by a Minister or a public officer. Added by:

XXIII. 1971.15. Amended by: XXIV. 1995.89.

181A.(1) Where a written pleading is filed by or against a body having a distinct legal personality, it shall be sufficient to state the name of such body.

(2) Any declaration or pleading to be sworn in terms of law shall, in the case of a body having a distinct legal personality, be sworn by the person or persons vested with the legal or judicial representation thereof or by any company secretary or by any other person authorised in writing by such body to file judicial acts on its b e half or to make any such de claration, sworn reply o r sw orn pleading.
(3) When a written pleading is to be filed by or against a ship or other vessel, it shall be sufficient if there is designated the name of such ship or other vessel, as the case may be, and it shall not be necessary to mention the name of any person to represent such ship or other vessel:
Provided that the written pleadings mentioned in this sub-article shall be served in accordance with the provisions of article 187(7).

Written pleadings filed by or against a body having a distinct legal personality.

Added by: XXIV. 1995.90. Amended by: XXII. 2005.33.

181B. (1) The judicial representation of the Government in judicial acts and actions shall vest in the head of the government department in whose charge the matter in dispute falls:

Provided that, without prejudice to the provisions of this article:
(a) actions for the collection of amounts due to Government may in all cases be instituted by the Accountant General;
(b) actions involving questions relating to Government employment or to obligations to serve Government

Judicial representation of Government. Added by:

XXIV. 1995.91. Amended by:

XXII. 2005.34; I. 2009.50.

may in all cases be instituted by the Principal
Permanent Secretary;
(c) actions relating to contracts of supplies or of works with Government may in all cases be instituted by the Director of Contracts.
(2) The Attorney General shall represent Government in all judicial acts and actions which owing to the nature of the claim may not be directed against one or more heads of other government departments.
(3) Every application, whether sworn or not, or other judicial act filed against Government shall be served upon each head of a government department against whom it is directed and upon the Attorney General and every time limit for the filing of any reply to any such act by any head of a gov ern m en t d e partm e nt bein g a defendant or a re s p onde nt in judicial proceedings sha l l not commence to run before the act is served upon the head or heads of the government departments against whom it is directed and upon the Attorney General. The registrar shall not charge any fees for effecting the service on the Attorney General.

Persons filing written pleadings are bound to accept service of other written pleadings. Amended by:

XXIII. 1971.16.

Notice of trial to be served on party himself.

182. (1) Where any of the persons mentioned in article

180(1)(b), (c), (d) and (e) has filed any written pleading in terms of that article, such person shall be bound to accept service of any
other written pleading relating to the cause, unless the opposite party has been informed by an intimation through the court of the cessation of the character in which the said person had filed the
pleading.
(2) Notwithstanding the provisions of sub-article (1), the notice of trial must be served on the party himself.

Duties of registrar in connection with the filing of written pleadings. Amended by:

IX. 1886.29; XV.1913.62.

Difficulty about filing of written pleadings. Amended by:

XI. 1980.2; XXIV.1995.92.

183. When a written pleading is filed, the registrar shall write thereon the date of filing, the name and character of the person filing the pleading, and the number of documents produced with the pleading. He shall also draw up the bail bond in respect of costs, whenever bail is required, as well as the bond of the parties where such parties have been admitted to the juratory caution. He shall note down in the margin the amount paid for fees and the name of the person paying them.

184. (1) If any difficulty shall arise in or about the filing of any written pleading, the registrar shall inform the party concerned, but he may not refuse to receive such pleading, except in the cases in which he is expressly enjoined or authorized so to do under the provisions of this Code. In the case of any such difficulty, he shall, as soon as possible, make a report thereof to the court, which shall give the necessary directions for his guidance. He shall, however, refuse to receive any written pleading which is in open violation of the provisions of articles 174, 176 and 178.

(2) In all cases, the registrar shall, upon a request to that effect, state in writing the reason for his refusal.

185. Saving the provisions of article 186(1), where an act is to be served on two or more persons even if they live together in the same address each of them shall be served with a copy of such act.

186. (1) Where two or more parties are pleading together, they sh all, on f ilin g the pl eading , apar t fr om g ivi ng thei r respect ive addresses, designate, by means of a note, a person, being one of the persons mentioned in article 180, as that on whom the answer and any other act of the opposite party may be served on behalf of all the parties pleading,

(2) If a pleading is directed against two or more persons, such persons may, on filing a joint answer, designate, by means of a note, a person, being one of the persons mentioned in article 180, as that on whom any act of the opposite party may be served on behalf of all of them.
(3) Where a person is so designated, any service relating to the act in respect of wh ich su ch design at ion was made, shall be effected on such person:
Provided that any of such persons may by means of another note declare that he henceforth requires separate service at an address, being the address of his residence or place of business, to be indicated by him.

Service on all parties. Substituted by: XXIV.1995.93.

Designation of person to be served with written pleading.

Amended by: XV.1913.63;

XXIV.1995.94; XXXI. 2002.64.

187. (1) Service shall be effected by the delivery of a copy of the pleading to the person on whom the pleading is to be served or by leaving such copy at the place of residence or business or place of work or postal address of such person with some member of his famil y or househol d or with some person i n hi s servi c e or his attorney or person authorized to receive his mail:

Provided that it shall not be lawful to leave such copy with any person under the age of fourteen years, or with any person who, on account of infirmity of mind, is unable to give evidence of such service. A person shall be presume d to be able to give such evidence unless the contrary is proved; and no objection may be raised on the ground of irregularity of the service for any of those reasons, if it is shown that the copy has actually reached the person to be served therewith:
Provided further that where a person to whom a pleading is addressed refuses to receive it personally from an executive officer of the courts, the court may upon an application by the interested party and a f ter hearing the executi ve office r of the c ourts and considering all the circumstances of the incident, declare by means of a decree that service shall have been effected on the day and time of the refusal and such decree shall be considered as a proof of service for all purposes of law.
(2) In the case of persons on board merchant ships, or members of the crew having no place of residence in Malta, service may be effected by delivering such copy to the master of the ship or any other person acting in that behalf.
(3) If it appears from the certificate of the officer charged with the service of a written pleading or any judicial act that, although it

Mode of service.

Amended by:

VII. 1856.2;

XV. 1913.63;

XIX. 1965.8;

XXVII. 1979.13;

XXIV. 1995.95;

XXII. 2005.35.

does not result that the person upon whom such a pleading or act is to be served, is abroad, access to his place of residence cannot be obtained, or his place of residence in not known, the court may direct service to be effected by the posting of a copy of the written pleading or act at the place, in the town or district in which official acts are usually posted up, and by publishing a summary of such wr itten pleading or act i n the G azette an d in o ne or mor e daily newspapers as the court may direct and, where possible, when the residence is known, by posting up a copy of the pleading on the door leading to such residence. The court may also adopt such other measures as it may de em fit to bring the pleading or act to the notice of the person upon whom the same is to be served. In such cases, service shall be deemed to have been made on the third working day after the date of last publication or after the date of such posting, whichever is the later. In cases where service has been ordered with urgency, service shall be deemed to have been made at such time, after posting or publication as the court may determine, which time is to be stated in the publication or posting.
(4) In the case of a body having a distinct legal personality, service on such body shall be effected by leaving a copy of the pleading:
(a) at its registered office, principal office, or place of business or postal address with any of the persons mentioned in article 181A(2) or with an employee of such body; or
(b) with any of the persons mentioned in article 181A(2)
in the manner provided for in sub-article (1).
(5) If it appears from the certificate of the officer charged with the service of a written pleading that service as provided in sub- article (4) has not been effected, the court may, if it appears that at least one of the persons mentioned in article 181A(2) is in Malta, direct service to be effected by t he post ing up o f a cop y o f the written pleading at the place in the town or district in which official acts are usually posted up, where the body has its registered office, principal office, or place of business, and by publishing a summary of such written pleading in the Government Gazette and in one or more daily newspapers as the court may direct and, where possible, by posting up a copy of the pleading on the door of the registered office, principal office, or place of business. The court may also adopt such other measures as it may deem fit to bring the pleading to the notice of any of the persons mentioned in article 181A(2).
(6) Where it appears that all the persons mentioned in article
181A(2) are absent from Malta or there exist no such persons, the
co urt shall ap poi nt a cur a t o r i n t h e in terest of su ch bo dy as provided for in article 929(d).
(7) In the case of an action against a ship or other vessel, service shall be affected by the delivery of a copy of the pleading to the master thereof or any other person acting in that behalf or, in the ab sence o f such perso n s, on th e agent of the ship o r oth e r vessel, as the case may be, or in the absence of such persons and agent, on curators appointed by the court in terms of article 929:
Provided that the court may also adopt such other measures as it may deem fit to bring the pleading to the notice of the person upon whom the same is to be served.
(8) Saving the provisions of article 193, service may also be effected by officers of the Post Office in such manner and under such rules in conformity with postal regulations as the Minister responsible for justice may order by notice in the Gazette:
Provided that, applications of appeal, and sworn applications made under the provisions of the Constitution of Malta and the European Convention Act, shall be served by the executive officers of the courts.

Cap. 319.

188. (1) The officer charged with the service of an act shall, on the same day when he serves or unsuccessfully seeks to serve the act, or, at the latest, on the following day, draw up a certificate stating whether the service was effected or not. In the affirmative, the certificate shall state the name and surname of the person on whom service was effected and, if the act was not served directly on the person on whom service was to be effected, the name and the surname of the person to whom the copy was delivered and the place where the act was served; in the negative, the certificate shall state the reason why service was not effected.

(2) Any certificate referred to in sub-article (1) shall be drawn up in the manner prescribed by the registrar, who may also direct that a form or forms printed, impressed or otherwise prepared be used for the purpose.
(3) The registrar may also require that any such certificate be confirmed on oath by the officer entrusted with the service and any such oath shall be administered by the registrar.

Certificate of service. Amended by: XV. 1913.64. Substituted by: XIX. 1965.9.

189. (1) If an act filed in, or a warrant or garnishee order issued by any court in the Island of Malta is to be served or, as the case may be, executed in the Island of Gozo or Comino, a copy thereof shall be transmitted by the registrar of the said court to the Registrar of the Court of Magistrates (Gozo).

(2) The officer effecting service or execution shall deliver to the Registrar of the Court of Magistrates (Gozo) the certificate of service or execution, duly confirmed on oath before the registrar himself who shall transmit it to the registrar of the court in which the act was filed or by which the warrant or order was issued.

Service of acts and execution of warrants and

orders in Gozo and

Comino.

Added by:

XIX. 1965.10.

Amended by:

VIII. 1990.3.

190. (1) If an act filed in or a warrant or garnishee order issued by the Court of Magistrates (Gozo) is to be served or, as the case may be, executed in the Island of Malta, a copy thereof shall be transmitted by any officer of the said court to the registrar.

(2) The officer effecting service or execution shall deliver to the registrar the certificate of service or execution, duly confirmed on oath before the registrar who shall transmit it to any officer of the Court of Magistrates (Gozo).

Service of acts and execution of warrants and

orders in Malta.

Added by:

XIX. 1965.10.

Amended by:

VIII.1990.3.

Substituted by:

XXIV. 1995.96.

Mode of preparing copies.

Substituted by:

XIX. 1965.11.

Amended by:

XXIV. 1995.97;

XXXI. 2002.69.

191. (1) Copies shall be printed, typewritten, made by other mechanical or electronic means or by any photographic process or written in ink:

Provided that in every case they shall be drawn up in clear and easily legible characters.
(2) Copies shall also be certified by the person presenting them or by an advocate or legal procurator to be true copies of the originals.

Penalty in case of irregular copies.

Reckoning of time. Provisions of this

Title to apply to all

courts and to all

acts.

Amended by:

XXVII. 1979.15.

192. In case of non-compliance with the provisions contained in the last preceding article, the party shall be entitled to have another copy made in conformity with the said article at the expense of the person who prepared the irregular copy, provided that the request for such other copy be made to the registrar by the party concerned within two days after the delivery of the irregular copy; and in any such case, if a time is fixed, it shall not commence to run except on the delivery of the regular copy.

193. The provisions contained in this Title shall apply to all the courts and to all other acts filed by the parties or issued by the court, in so far as such provisions may be applicable to such courts and to such other acts:

Provided, however, that precautionary and executive warrants may only be served or executed by officers of the courts.

Assignment of causes.

Added by: XXXI. 2002.70.

Title V

OF THE TRIAL OF CAUSES

193A. (1) Causes shall be assigned in accordance with rules of court or regulations made in accordance with article 29.

(2) Such rules or regulations may also provide for the procedure to be followed in the pre-trial and trial stages of a cause which has been set down for hearing.

Posting up of cause list.

Amended by: XI. 1859.9; XXVII. 1979.16;

XXIV. 1995.98.

194. (1) The registrar shall cause a list of the causes which are to be tried at a particular sitting to be posted up at the side of the entrance of the court room where the causes are to be heard at least one hour before the case is to be heard, saving urgent cases referred to in article 154(2).

(2) The list shall bear the date on which it is posted up as aforesaid and shall be signed by the registrar.
(3) The list shall be deemed to be posted up, according to the regulations, on the date which it bears and at the time of the closing of the registry.

195. (1) A cause the written pleadings of which have been concluded shall be set down either for pre-trial hearings or for trial hearings as may be provided in regulations and shall be brought to a conclusion as expeditiously as possible:

Provided that in causes before the courts of inferior jurisdiction, the conclusion of the written pleadings shall take place wh en the party to be notified of the rela tive cause ha s been so notified in accordance with the provisions of this Code.
(2) (a) The Court shall -
(i) at the first hearing of both at first instance as well as at the court of appeal stage, make a record stating the parties who have been served with the application, with the application on oath or with the application on appeal as the case may be and, if it is determined that there are any parties who have not been so served, give such orders as it may deem fit so that services may be effected or other acts prepared; and
(ii) at the first hearing of both the pre-trial stage and the trial stage, plan in advance, after consulting with the advocates of the parties, all the sittings to be held as well as the projected date of judgement and shall also direct the parties on what evidence and submissions it expects to be made at each sitting:
Provided that the court shall, for grave reasons to be expressly stated in the records of the case or for reasons of urgency, call any other sittings and request any other evidence or submissions it deems fit.
(b) The Court may delegate its functions under paragraph
(a) to a judicial assistant.
(3) Unless rules of court are made under article 29, all causes shall be appointed for hearing within two months and sittings shall be held on a bi-monthly basis.
(4) The date and time for the hearing shall be determined at least two months prior to the date fixed for the hearing, provided that the court may decide, either where it deems to be appropriate or after consultation with the advocates of the parties or in any other case where the cause is to be heard with urgency, to fix an earlier date, and where such date and time has been so fixed, no adjournment of the hearing shall be granted except for grave and exceptional reasons to be stated in the records of the case:
Provided that in causes which are to be heard with urgency the said period of two months shall not apply.
(5) (a) Where a cause has been pending before a particular court for three or mo re years, any party to the case may, personally, and without the need of representation by an y advocate, present an application, (which application shall, however, not form part of the acts of

Trial of causes. Amended by: XXXI. 1934.31; XXXIII. 1934.2; XXVII. 1979.17; VIII. 1981.5; XXIV. 1995.99. Substituted by: XXXI. 2002.72. Amended by:

IX. 2004.5; VII. 2007.16.

Cap. 369.

the case) to the Chief Justice requesting that, for the simple reason that the caus e has taken so long, the presiding member of the court be changed and the case assi gn ed to ano t h e r memb er of the judiciary; the decision of the Chief Justice, which shall be taken in camera, shall be final and conclusive; and where such assignment takes place there shall be no need for any notification of such assignment.
(b) Where a cause has been pending for judgment before a particular court for eighteen months or more, any party to the case may, personally, and without the need of representation by any advocate, present an application, (which application shall, however, not form part of the acts of the case) to the Chief Justice for this purpose, and the Chief Justice may, for the simple reason that the judgment has taken so long to be delivered, allow the request for the presiding member of the court to be changed and for the case for judgment to be assigned to another member of the judiciary; the decision of the Chief Justice, which shall be taken in camera, shall be final and conclusive; and where such assignment takes place there shall be no need for any notification of such assignment.
(c) The Chief Justice shall draw up a yearly report on any causes transferred in accordance with the provisions of paragraphs (a) and (b), detailing the possible reasons for such delays, and shall send the report to the Commission for the Administration of Justice. The Commission shall take such action as it may deem appropriate in accordance with the provisions of the Commission for the Administration of Justice Act, and shall, within three months, publish such report.
(6) Nothing in this article contained shall preclude the court from deciding a cause on the day fixed for first hearing where the claim is not contested or the court is satisfied that the plaintiff has no claim or the defendant has no valid defence.

Absence of witness to be a good

ground for

adjournment.

Substituted by:

XXIV. 1995.100.

Amended by:

XXXI. 2002.73.

196. (1) The absence of any witness regularly subpoenaed, shall be good ground for an adjournment of the cause, provided his evidence be shown to be material.

(2) The court may in this case appoint a judicial assistant to hear the evidence of such witness on such a day and at such a time as the court shall determine. Such day and time shall be prior to the date to which the cause is adjourned.

Order of trial. Amended by: XI. 1859.10; XXXI. 1934.32;

L.N. 148 of 1975.

Government causes.

197. (1) Causes shall be tried in the order in which they stand on the list, unless the court for a good reason shall otherwise direct.

(2) Nevertheless, the causes to which the Government of Malta is a party shall always be heard before any other cause unless the court shall deem it necessary, on grounds of urgency, to follow the
order of the list or to try other causes.

198. Before the hearing of a cause commences, the proper officer shall, outside the entrance of the court room, announce the hearing, calling out aloud three times the names and surnames of the contending parties:

Provided that when there are several plaintiffs or defendants he shall call out the name and surname of the party first mentioned in the title of the record, and shall refer to the others by the general nomenclature of "others".

Calling on of causes.

199. (1) If, after a cause is called on three times, the contending parties or their advocates or, in the causes before the inferior courts, the contending parties or their advocates or legal procurators, fail to appear, it shall be lawful for the court to order the cancellation of the cause from the list at the expense of the plaintiff.

(2) If only the defendant or his advocate or legal procurator, as the case may be, appears, he shall be entitled to demand that the plaintiff be non suited with costs.
(3) In either case, if the plaintiff desires that the cause be restored to the list to be heard and determined upon the same acts, he shall, by means of an application to be filed within ten days, make a demand to that effect. Such demand shall be granted once only, and the court shall appoint a day for the trial of the cause at the expense of plaintiff, on condition that the plaintiff shall make payment, or deposit in the registry of the court before the day fixed for the trial, all the costs stipulated in the tariff, in the consequence o f the non- appearance of plainti ff, or of h i s adv o cate or legal procurator, as the case may be.

Default of appearance of contending parties at trial.

Amended by: IX. 1886.30; XXXI. 1934.33; II. 1940.4;

XXIV. 1995.101.

Default of appearance of plaintiff.

Right of plaintiff to have cause again set down for trial.

200. (1) The plaintiff shall likewise be non suited with costs if, when the cause is called on, it is found that no security for the costs of the suit has been given as provided in this Code, unless, within a short time which the court may deem fit to allow, a sum in ready money, sufficient to secure the costs of the suit, be deposited with the registrar.

(2) The sum so deposited shall not be subject to the claims of the creditors of the party making such deposit, so long as such sum is intended to meet the costs of the suit.

Non suit of plaintiff in default of security for costs.

Security for costs not subject to claims of creditors.

201. If the defendant or his advocate, or, in the causes before the inferior courts, the defe nd ant or his advocate or legal procurator, fails to appear, the cause may be determined according to law on the acts available after hearing such evidence as the court may consider necessary, notwithstanding his default of appearance.

202. Repealed by XXXI. 2002.74.

Default of appearance of defendant. Amended by: XXXI. 1934.34; XXIV. 1995.102.

Regulation of trial. Substituted by: XXIV. 1995.103.

Power of court to vary order of production of evidence. Substituted by: XXIV. 1995.104.

Party may plead personally or through advocate. Amended by: XXXI. 2002.75.

Distribution of oral pleading when more than one advocate appears for the same party.

Power of court to rule out useless matter in oral pleading.

203. Repealed by XXXI. 2002.74.

204.(1)(a) The parties, either personally or through their advocates or, in the inferior courts, either personally or through their advocates or legal procurators, shall have the right to make their submissions in writing or orally as the court m a y decide, b y the plainti f f su bmitting his case and th e defen d an t maki ng his answer:
Provided that the court may in appropriate circumstances allow a further reply by the plaintiff and a rejoinder by the defendant.
(b) When the trial of the cause is closed, no further evidence shall be allowed, except for just cause and by leave of the court.
(2) If more than one advocate appears for the same party, it shall be lawful, if such party be the plaintiff, for one advocate to state the case and for another to make the reply and, if such party b e th e de fe nd an t, for one advocate to ma ke the answ er and fo r another to make the rejoinder. The advocates may also distribute among themselves the several issues of the controversy and the evidence.
(3) Nevertheless, in all cases the court is empowered to rule out f ro m the oral pl eadin g al l m att er w hich , in its opi nion , may be calculated to cause useless delay, or consists in repetition, or is irrelevant or extraneous to the cause.

Party assisted by advocate not to address court. Amended by:

IX. 1886.31; XXIV. 1995.105.

Power of court where party appears without advocate.

205. (1) The party assisted by an advocate may not, without leave of court, make any submission except through his advocate.

(2) The court may order the party who is not assisted by an advocate to engage one if, in the opinion of the court, such party is unable adequatel y to p l ead his ca se; and if such party fails to engage an advocate, the court shall appoint, for the purpose, one of the official curators to be selected according to the turn on the rota; if the party refuses to give th e necess a ry information to the advocate so appointed, the court may dispose of the case after hearing such evidence as the court may consider necessary.

Close of trial. 206. Repealed by XXXI. 2002.76.

Order of trial in appellate court. Amended by:

IX. 1886.32; XXIV. 1995.106; XXXI. 2002.77.

207. Before an appellate court -

(a) where the appeal is entered by the plaintiff only, or by both parties, the order of hearing shall be the same as provided in article 204(1);
(b) where the appeal is entered by the defendant only, he shall commence by briefly stating the alleged grounds
of complaint and praying that the judgment appealed from be reversed or varied, and the order of hearing shall then be as provided in article 204(1).

208. (1) No witness who was not produced in the court below may be produced on appeal, unless -

(a) the opposite party gives his consent thereto; or
(b) it is proved on oath or otherwise, that the party tendering the evidence of such witness had no knowledge thereof, or was unable, by the means provided by law, to produce such witness in the court below; or
(c) the evidence of such witness was tendered and disallowed before the court below and the appellate court considers it admissible and relevant; or
(d) the appellate court is satisfied of the necessity or expediency of taking the evidence of such witness:
Provided that in any such case, the court may, in adjudging the costs of the case, take into account the tardy production of such witness.
(2) If in the court of first instance the defendant had failed to file the sworn reply as mentioned in article 158 and to appear at the trial of the cause, he shall be precluded from producing witnesses before the appellate court, unless he shows to the satisfaction of such court a good reason for his default.

Production of witnesses before appellate court. Amended by:

IX. 1886.32; XV. 1913.65;

XXXI. 1934.35; XXII. 2005.36.

209. (1) In the Court of Appeal, if, when the cause is called, it is found that security for the costs of the suit is not produced as provided in article 249, the court shall forthwith proceed to declare the appeal abandoned:

Provided that the court may grant the appellant a short time to produce security for costs if the appeal is one which is to be heard with urgency, or if the registrar has not:
(a) fixed the amount for such security; and
(b) notified the appellant accordingly indicating in such notice the consequences of his default, at least ten days prior to the hearing.
(2) If, when a cause is called on three times, neither of the parties nor their advocates appear, or if only the respondent or his advocate appears, th e court may declare the appeal abandoned. Nevertheless, on an application by the appellant, filed within eight days from such declaration, the court shall order that the cause be again put on the list for hearing and determination, provided the appellant shall have deposited, within the said time, the amount of costs occasioned by his non-appearance.

Appeal to be declared abandoned in default of security for costs,

Amended by: IV. 1868.4;

XXXI. 1934.36; XXIV. 1995.107.

and in default of appearance of both parties or of appellant. Right of appellant to have cause again set down for trial.

210. It shall not be lawful for the parties or their advocates to interrupt each other. Every person whose turn it is to speak shall address the court only.

Parties or advocates not to interrupt each other.

Judgment to be given in the same or at earliest date.

Grounds of adjournment to be stated by court and noted down by registrar.

Added by: XXXI. 1934.37.

211. When the hearing is concluded, the court, if it does not deliver judgment on the same day, shall reserve judgment for the earliest possible date to be fixed for the purpose.

212. (1) If the court does not deliver judgment on the day fixed for the trial of the cause, the court shall give the reason according to law for adjourning the cause to another day.

(2) The registrar shall keep a procès-verbal, to be inserted in the record, of the grounds of each adjournment and of everything done in each sitting.

In inferior courts, the court may adjudge on a right although not falling precisely within original claim.

Amended by: XV. 1913.66;

VIII. 1990.3; XXII. 2005.37.

213. In first instance, in the Court of Magistrates (Malta) and in the Court of Magistrates (Gozo) in its inferior jurisdiction, where the claim as stated in the application has not been made to appear, but nevertheless, another right has been made to appear although such other right does not fall precisely within the terms of the claim as originally framed, the court may adjudge upon such other right so made to appear on the same application:

Provided that the court shall, if a request is made to that effect, or if it shall deem it proper so to do, allow a short time to the defendant to prepare his defence against such other right:
Provided further that in no case shall the court award a sum beyond that originally claimed.

Appearance of parties in inferior courts.

Inferior courts to proceed summarily.

214. In the courts mentioned in the last preceding article, the part ies shal l ap pear person ally or thro ugh any o f the persons m e ntioned in art i cle 180 who can lawfully represent t h em, or through an advocate.

215. The courts mentioned in article 213 shall proceed summarily and with the utmost despatch consistent with the due adm ini st rati on o f j ustice, and shal l com ply with the pro vision s co nta i ned i n t h is T i t l e i n so far as such p r ov isio ns may be consistent with the m anner of proceeding of th e said cour ts as aforesaid.

Delivery of judgment. Amended by: XV. 1913.66; XXII. 1992.8.

Title VI

OF DECREES, JUDGMENTS AND APPEALS

216. The judgment shall be delivered by the judge or magistrate before whom the cause has been tried; and when the court consists of more than one judge or magistrate, by one of such judges or m a gistrat e s; so however that it shal l be l a wful for th e judg e or m a gi st rate presi d in g t h at co urt to del i ver th e ju dgm ent in the absence of the other m e m b ers o f the co urt provided that the judgment is signed by at least two of the members of the court.

217. In a court consisting of more than one member, the decision of the majority shall form the judgment which shall be delivered as the judgment of the whole court.

218. The court shall in the judgment premise the reasons on w h ich the d e cisio n o f t h e court is b a sed, an d shall in cl ude a reference to the proceedings, the claims of the plaintiff and the pleas of defendant:

Provided that the Rule-Making Board appointed under article 29 may, by Rules of Court, derogate from the provisions of this article.

Decision of majority to form judgment of court consisting of more than one member. Amended by:

IX. 1886.34; IV.1905.3.

Judgment to include reasons. Amended by:

VI. 1880.21; XXIV. 1995.108.

Substituted by: VII. 2007.18.

219. Every declaration intended by the court to be conclusive or binding shall be included in the operative part of the judgment.

219A.(1) In proceedings for the recovery of a debt, a judgement given upon admission of the claim or upon a claim that has not been disputed by the defendant shall, so far as possible considering the circumstances of the case, be delivered within ninety days of the lodging of the action before the Court.

(2) The period mentioned in subarticle (1) shall not include the p e rio d o f t ime t a k e n fo r serv ice of th e appl icatio n upo n the defendant.

220. When judgment is delivered, the registrar shall record the decision toget h er with the reasons gi ven b y th e court for such decision.

221. (1) Saving the provisions of article 173, interlocutory decrees shall be delivered and recorded in the manner provided in the preceding articles of this Title.

(2) The provisions of article 218 shall also apply to the said de cre e s, when the y a r e subject to a p pe al ac cording to the provisions of article 229.

Conclusive or binding declarations to be included in operative part of judgment.

Proceedings for the recovery of a debt.

Added by: IV. 2001.35.

Amended by: XXII. 2005.38.

Recording of decision and reasons.

Delivery and recording of interlocutory decrees. Amended by: XI. 1859.11; XXVII 1979.18.

222. Where the claim is for some specific performance, the judgment shall state a time, according to circumstances, within which the party cast shall perform the act, and shall also state the manner of execution in case of non-performance of the act.

223. (1) Every definitive judgment shall award costs against the party cast.

(2) In the case of an interlocutory decree, it shall be lawful for t h e co urt t o re s e rv e t h e is s u e as to costs for de cision in the definitive judgment or to award costs against the party cast.
(3) In all cases, it shall be lawful for the court to order that the costs shall not be taxed as between party and party, when either pa rty ha s be en cast in some of the po ints at issue, or when the matter at issue involves difficult points of law, or where there is

Judgment upon claim for specific performance.

Costs. Amended by: XIII. 1964.21; XXIV. 1995.109; XVI. 2004.33; VII. 2007.19.

any other good cause.
(4) In the case of any frivolous or vexatious appeal or re-trial, the Court of Appeal or the Constitutional Court may award double costs against the appellant in favour of the respondent.
(5) In the case where an ex parte expert witness is produced by an y of the parties in a cause, the court sh al l in the defin itiv e judgment establish a fair amount which can be claimed as costs for the said witness. In determining the said amount, the court shall take into account the seriousness of the claims, in the case of an expert witness not resident in Malta, whether local expertise was available and all the other circumstances of the case. The court sh al l a l s o e s t a b lis h h o w t h e sa id co st s are to be ap port i one d between the parties to the cause.
(6) Subject to article 173(2)(c), when a party without just cause refuses or fails to participate before or collaborate with a mediator, the Court may award double costs in the other party’s favour due to such refusal or failure.

Award of costs in solidum or pro rata.

Amended by: IX. 1886.35.

Costs against tutors, etc.

Time for filing application of appeal. Amended by: IX.1886.36; XV.1913.67; XII.1924.2; VIII.1990.3. Substituted by: XXIV.1995.110.

224. If two or more persons are condemned in costs, each person shall be d e emed t o be cond emn e d i n so lid um or in proportion to his interest in the cause according to the decision on the merits.

225. Where any tutor, curator, heir under the benefit of inventory or other private or public administrator has in a cause acted to the prejudice of his administration, the court may, in the same judgment delivered in that cause, without the necessity of se parate proceedings, condemn su ch tutor, curator, heir or admi ni strat o r t o pay perso n al ly an d w i t h o u t an y ri ght t o reimbursement costs as well as damages and interest according to law, saving any other penalties to which he may be liable according to circumstances.

226. (1) An appeal is entered by means of an application to be filed in the registry of the Court of Appeal within twenty days from the date of the judgment.

(2) Where an appeal is not entered from the whole judgment, there shall be stated in the application of appeal, the heads of the judgment against which an appeal is entered.

Judgments by appellate courts not subject to appeal. Amended by: VII.1880.8; XXII.1976.4; VIII.1990.3. Substituted by: XXIV.1995.111.

227. Judgments delivered by the Court of Appeal are not appealable.

228. (1) No appeal shall lie from any judgment given upon admission of the claim, or accepted by the renunciation of the right of appeal or by acquiescence in the findings of the judgment.

(2) Nor shall an appeal lie from any judgment of the Court of Magistrates (Malta), or of the Court of Magistrates (Gozo) in its inferior jurisdiction as a court of first instance, where the amount of the claim, assessed or assessable as provided in articles 748 and
761, does not exceed four hundred and sixty-five euro and eighty- seven cents (465.87), and the matter at issue does not involve a point of law determined in the judgment or the determination of a claim for the eviction of any person from immovable property.

Other judgments not subject to appeal.

Amended by: XV.1913.68; XXXI. 1934.38;

XXIII.1971.17; XIII.1983.5; XII. 1985.6;

VIII. 1990.3; XXIV.1995.112; L.N. 407 of 2007.

Appeal from inferior courts when admissible.

229. (1) An appeal from the decrees mentioned hereunder shall only lie after the definitive judgment and together with an appe al from such judgment, and suc h decrees may not be challenged before the definitive judgment is delivered:

(a) a decree allowing a request for urgency;
(b) any order or directive under the provisions of article
173;
(c) a decree allowing or disallowing a request for the adjournment of a cause under article 195(3);
(d) a decree allowing or disallowing an objection to the competency of a witness under article 567;
(e) a decree allowing or disallowing a request to put questions to a witness under article 587;
(f) a decree allowing or disallowing a request for the production of documents under article 637;
(g) the appointment of a referee under article 646;
(h) a decree allowing or disallowing a request for the connection of actions under article 793(1);
(i) a decree allowing or disallowing a request for suspending the delivery of a decree;
(j) a decree allowing or disallowing the expunging of a document from the records of the case;
(k) subject to the provisions of this article, a decree allowing or disallowing a request for the revocation or amendment of a decree;
(l) a decree disallowing a request for special leave to appeal under sub-article (5);
(m) a decree disallowing a request for stay of proceedings.
(2) A decision of the court in the cause listed hereunder shall be given b y a decree t o be read out i n open court on a d a y duly

Appeal from decrees. Amended by: XV. 1913.69. Substituted by:

XXIV. 1995.113. Amended by:

IV. 1996.4;

IX. 2004.6;

L.N. 407 of 2007.

entered before the definitive judgment subject to the procedure laid down in sub-article (4) and (5):
(a) a decree refusing the appointment of additional referees under article 674;
(b) a decree transferring an action for trial to another court under article 792,
(c) a decree refusing the joinder of a third party under article 961;
(d) a decree disallowing a request for urgency; (e) a decree ordering the stay of proceedings.
(3) Save as otherwise specifically provided for in this Code an appeal from any other interlocutory decree not included in sub- articles (1) and (2) may be entered before the definitive judgment only by special leave of the court hearing the case, to be requested by an application to be filed within ten days from the date on which the decree is read out in open court. The court, after hearing the parties, may grant such leave of appeal if it deems it expedient and fair that the matter be brought before the Court of Appeal before the definitive judgment and the time limit for the filing of such an appeal shall commence to run from the date of the said decree.
(4) In the case of any decree under subarticles (2) and (3), provided that any application for an appeal has not been filed, the aggrieved party may file an application within six days from the date on which the decree is read out in open court, requested the court which delivered the decree to reconsider its decision. The application is contain full and detailed reasons in support of the request and is to be served on the other party who shall have the righ t t o fil e an an swer thereto wit hin six days fro m the date of service.
(5) The court shall decide, as expenditiously as possible by decree to be read out in open court, the application for special leave to appeal in terms of sub-article (3) or the application to reconsider its decision in terms of sub-article (4), expounding fully therein the reasons for the decision.
(6) The period for appeal from a decree before a definitive judgment shall be six days from the date on which the decree is read out in open court:
Provided that in the case contemplated in sub-articles (3) and (4) such term for appeal shall run from the day on which the decrees in terms of sub-article (5) are read out in open court.
(7) Subject to the provisions of this article, the provisions of this Code relating to appeals from judgments shall apply to appeals from decrees under this article.
(8) The security referred to in article 249 shall not be required in the cases referred to in sub-article (6).
(9) In the case of any frivolous or vexations appeal, the Court of Appeal shall award double costs against the appellant in favour
of the respondent, and may condemn appellant to pay respondent a sum not exceeding two thousand and three hundred and twenty-nine euro and thirty-seven cents (2,329.37) by way of penalty, saving any right for damages that may be competent to respondent.
(10) Where an interlocutory decree has been given in camera, it shall for the purposes of this article and for the purposes of the calculation of any time therein established be deemed to have been read out in open court on the date of the first sitting in the case immediately after the decree was given in camera by the court.
230. Interlocutory decrees shall not operate as a res judicata in regard to the court by which they are delivered, if a good cause to depart therefrom is shown to the satisfaction of the court.

231. (1) Where several issues in an action have been determined by separate judgments, appeal from any such judgments may o n ly be entered after the final j udgm ent and with in t h e prescri b ed t ime, to be reckoned from the d a te of such final judgment; and in such an appeal express mention of the judgment or judgments appealed from shall be made:

Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within six days fr om such judgment and when such leave to appeal from such separate judgements is granted the time for the filing of the appeal in respect thereof shall commence to run from the day on which the said leave is read out in open court.
(2) In an action involving more than one plaintiff or more than one defendant a judgment disposing of the action in respect of any particular plaintiff or defendant may only be appealed from within the prescribed time to be reckoned from the date of such judgment.

Interlocutory decrees not to operate as res judicata for court delivering them.

Appeal in case of separate judgments on several issues in the same action. Substituted by: XXIV. 1995.114. Amended by:

XIII. 2005.7.

232. It shall be lawful for the party in whose favour damages, interest, or fruits have been awarded, to proceed for the assessment thereof pending the appeal; but such party shall be liable for all expenses occasion ed b y such procedure in case the j udgmen t appealed from is reversed.

233. (1) Where an appellate court reverses a judgment and allows the claim for damages or inte rest or for the recovery of fruit s, it shall make such assessment without sending back the record to the court of first instance, unless the court for exceptional reasons considers it to be in the interest of justice to send back the cause to the court of first instance.

(2) Likewise the appellate court shall, in the case of reversal of a judgment of non-suit of plaintiff or of a judgment given under the provisions of article 170(1) or (2), either remit the records to the court of first instance or dete rmine the me rits, ac cording to circumstances.

Assessment of damages, etc., pending appeal. Liability for expenses in case of reversal of judgment.

Power of appellate court to assess damages, interest or fruits.

Amended by: XV. 1913.70.

Substituted by: XXIV. 1995.115.

to jurisdiction of court to be subject to appeal. Amended by:

XV. 1913.71; XXIV. 1995.116.

No appeal ab omissa decisione. Amended by:

IV. 1865.2; XXIV. 1995.117.

XXII. 2005.39.

Parties may request first court to decide claim not determined by application within fifteen days,

or by sworn application at any time.

concerning pleas to the jurisdiction by reason of the subject-matter of th e cause, an y j u dg m e nt gi v e n b y an y co ur t i n r e gar d t o i t s jurisdiction to take cognizance of any particular cause, is subject to appeal; and the court may stay the hearing of the cause until the determination of that point by the appellate court, provided none of t he parti es sh ow s t o t he sati sfa cti on of the co urt tha t t he de lay would be prejudicial to him.
235. Where a court of first instance omits to determine any of the claims brought forwar d, no appeal shall lie ab om issa decisione:
Provided that it shall be lawful for each of the parties, within the time of fifteen days from the date of the judgment, by means of an application, to request the court of first instance to determine such claim; and upon such application, the parties being summoned anew, the court shall adjudge upon the claim; in such case, the time for entering appeal from the whole judgment, or from any part thereof, shall commence to run from the day of the last judgment:
Provided further that it shall be lawful for each of the parties, at any time, to sue by sworn application before the court of first instance for a decision on the claim the determination of which had been so omitted.

Interested third parties may appeal.

Judgment not to operate against third parties.

Persons who benefit from appeal. Added by: IX. 1886.37.

236. An appeal may be entered not only by the contending parties but also by any person interested.

237. A judgment shall not operate to the prejudice of any person who neither personally nor through the person under whom he cl aims n o r t h roug h hi s law f ul agent was par t y t o th e cause determined by such judgment.

238. (1) The reversal or variation of a judgment shall operate in favour of the party at whose instance such reversal or variation is obtained.

(2) Such reversal or variation shall also operate in favour of any person -
(a) who has an interest essentially dependant upon that of the party at whose instance such reversal or variation is obtained;
(b) who, in any controversy relating to an indivisible thing, was joint plaintiff or defendant with the party at whose instance such reversal or variation is obtained;
(c) who in virtue of the judgment which is reversed or varied was condemned in solidum with the party at whose instance the reversal or variation is obtained:
Provided that the reversal or variation shall not operate in favour of the person referred to in paragraphs (b) and (c) where su ch reve rsal or v a riat io n i s o b t a in ed o n grou nd s e x cl usi v e l y affecting the party seeking such reversal or variation.

239. (1) The judgments mentioned hereunder shall be operative with respect to third parties, only from the time when they are enrolled in the Public Registry, namely:

(a) any judgment by which any act having the effect of transferring the ownership of immovable property or any other real right thereon, is dissolved, rescinded or revoked;
(b) any judgment which directly adjudges the transfer of the ownership of immovable property or of any other real right thereon.
(2) Any interested party may obtain enrolment by delivering to the said registry a note of enrolment together with an authentic copy of the judgment as well as a certificate from the registrar that the judgment has become res judicata. The provisions of the Public Registry Act shall apply to the drawing up and filing of the said note.
(3) In the case of any judgment referred to in sub-article (1)(a), when the judgment shall have become res judicata, the registrar shall, at the request and at the expense of the inte rested party, deliver a note of reference to such judgment to the notary before whom the act which has been dissolved, rescinded or revoked was received, or who is the keeper thereof.

Certain judgments may only operate in respect of third parties if and from the time they are entered in the Public Registry. Added by:

IX. 1886.3. Amended by:

XXIV.1995.118.

Cap. 56.

240. (1) Any party may avail himself of an appeal entered from a judgment, including a partial judgment and from a head or heads of any judgment, or from an interlocutory decree and may enter a cross appeal not only in respect of the judgment, partial judgment, head or heads of a judgment, or interlocutory decree appealed from, but also in respect of any judgment or heads thereof or interlo c utory decrees given in the same cause even if not appealed from by the appellant. Such cross appeal may be made even against or by any party not being one against whom an appeal is directed in terms of article 144(1):

Provided that a party may not so avail himself of the appeal in respect of the particular judgment, if he has already appealed from such judgment or any head thereof.
(2) The party who intends to avail himself of such appeal shall make a declaration to that effect in the answer stating therein his demands and the grounds for his cross appeal.

Cross-appeal. Amended by: XI. 1859.12; IX. 1886.38. Substituted by:

XXIV. 1995.119.

241. The declaration referred to in the last preceding article shall continue to be operative even if the opposite party abandons his appeal.

Cross-appeal to hold good notwithstanding abandonment of appeal.

Notice as to validity of laws. Amended by: IX.1886.39;

XV. 1913.72; VIII. 1990.3.

Substituted by: XXIV. 1995.120. Amended by:

XI. 2006.3.

Cap. 319.

Cap. 319.

242. (1) When a court, by a judgment which has become res judicata, declares any instrument having the force of law or any p r o v isio n thereof to run coun ter to an y p r ov isio n o f the Constitution of Malta or t o any hum an righ t or fundamental freedom set out in the First Schedule to the European Convention Act, or to be ultra vires, the registrar shall send a copy of the said judgment to the Speaker of the House of Representatives, who shall during the first sitting of the House following the receipt of such judgment inform the House of such receipt and lay a copy of the judgment on the table of the House.
(2) Where there has been a judgment as is mentioned in su b art i cle ( 1 ) t he Pr im e Mi ni st er m ay, wi th in th e per i od of si x months from the date that the judgment has become res judicata and to the exten t necessary in his op inion t o remov e any inconsistency with the Constitution of Malta or with the relevant human right or fundamental freedom set out in the First Schedule to the European Convention Act as declared in the said judgment, make regulations deleting the relevant instrument or any provision
thereof declared to run counter to the Cons titutio n or th e First
Schedul e to t h e Euro pean Co nventi on A c t as men tioned in subarticle (1).

Abridgement of time for appeal. Added by: IX.1886.39. Amended by: XV. 1913.73;

XXIV. 1995.121.

243. (1) The court of first instance may, in urgent cases, upon a demand, even verbal, by any of the parties, immediately after the delivery of the judg ment, abr idge the time f or the fil ing by the appellant of the written pleading before the appellate court.

(2) If no such demand is made by the parties immediately after judgment is delivered, it shall be lawful for the parties to make su ch dem a nd by an ap pl icat ion u pon w h i c h t h e cou r t o f fi rst instance, after summarily hearing the parties, will give the requisite directions.
(3) The provisions of this article shall apply to the answer, and, if there is a reply, to such reply.

Lodging of record.

Added by:

IX. 1886.39.

Amended by:

XV. 1913.74;

LIII. 1948.2.

Substituted by:

XXIV. 1995.122.

244. (1) On appeal proceedings being taken, the record of the proceedings of the first court shall be lodged before the appellate court.

(2) The fee prescribed for the lodging of the record shall be paid concurrently with the fee for the filing of the application.

Mode of lodging record.

Amended by: VII. 1880.8. Substituted by:

LIII.1948.3; XXIV. 1995.123.

Lodging of record in appeals before Gozo court as appellate court. Amended by:

VII. 1880.8; IX. 1886.39.

245. In regard to appeals from judgments or decrees of the Civil Court, First Hall, and from determinations by the Rent Regulation Bo ard, th e lod g ing of the record shall be ef fected as soon as possible by the production thereof before the Court of Appeal by the registrar.

246. Repealed by: XXIV. 1995.124.

247. (1) In regard to appeals from judgments of the Court of Magistrates (Gozo) and from judgments of the Court of Magistrates (Malta), the lo dgin g o f the reco rd shall be ef fected by the transmission thereof by any officer of the court concerned to the registrar in the Court of Appeal.

(2) For the purposes of sub-article (1) -
(a) the registrar shall, on the same day on which an appeal is entered, notify in writing the entering of such appeal to the officer of the court concerned;
(b) when notification is made to any officer of the Court of Magistrates (Gozo) the registrar shall, in addition to the notification in writing, make notification by telefax or other electronic device or orally by telephone.
(3) In respect of appeals entered against a judgment of the Court of Magistrates (Gozo) the transmission of the record shall be deemed to have been ef fected by the delivery of the record addressed to the registrar, to the Post Office, in Victoria, Gozo.

Lodging of record in appeals from inferior court to Court of Appeal. Amended by:

VII. 1880.8. Substituted by:

LIII. 1948.4. Amended by:

VIII. 1990.3. Substituted by: XXIV. 1995.125.

248. Repealed by: XXIV. 1995.126.

249. (1) Saving the provisions of the proviso to article 209(1) and unless otherwise provided in any other law, in the case of an ap peal from judgm ents or decrees given in a cause init iated by swo r n app licat ion, secu rity for co st s is to be prod uced an d d e p o sited i n cour t wi thin twelv e month s from the date of the notification of the amount to be deposited or, if the appeal is to be heard earlier t h an tw el ve m onths from the notification herein mentioned, not later than two da ys befor e t h e d a te set for the hearing of such appeal.

(2) Such security shall be in an amount determined by the registrar and is to be made either by a deposit of ready money or by a guarantee of a bank licensed in terms of the Banking Act in accordance with Schedule C to this Code.
(3) The deposit shall not be subject to the claims of the creditors of the party making such deposit, so long as it remains to meet the costs of the suit.
(4) The Government of Malta, public corporations, the Central Ban k of Mal t a an d ba nk s l i cens e d un de r t h e Banking Act are exempt from giving the said security.
(5) The Minister responsible for justice may by regulations exempt any other category of persons or bodies from providing the said security.
(6) The provisions of articles 893 to 905 where inconsistent with this article shall not apply to the security given under this article.

Fee on lodging of record, in appeal from Gozo court to Court of Appeal. Substituted by: LIII.1948.5.

Security for cost:

Amended by:

IX. 1886.41;

XV. 1913.75.

Substituted by:

XXIV. 1995.127.

Amended by:

XXII. 2005.40;

VII. 2007.20.

Cap. 371.

Cap. 371.

Exemptions from security.

Amended by:

VII. 1880.9;

IX. 1886.42;

XV. 1913.76;

XXIV. 1995.128.

Times mentioned in article 226 to be peremptory. Amended by:

IX. 1886.44; XV. 1913.77; XXIV. 1995.129.

250. The security referred to in the last preceding article shall not be required in the cases referred to in articles 42 and 172, or in the case of an appeal from a judgment disallowing a demand for the benefit of the juratory caution, or in the case of any demand for admission to the benefit of juratory caution, or in the case of other collateral demands.

251. Subject to the provisions of article 143, the times prescribed in article 226 are peremptory.

Amended by: IX. 1886.45.

Added by: XXXI. 2002.84.

Mode of enforcement of executive title. Added by:

IX. 1886.46. Substituted by:

XII. 1985.7.

Executive titles.

Added by:

IX 1886.46.

Amended by:

XV.1983.3;

II.1996.78;

XVIII.1999.33;

XXXI.2002.85;

IX. 2004.7;

XVIII. 2004.113;

IX. 2010.31;

VI. 2011.180.

Cap. 13.

Title VII

OF THE ENFORCEMENT OF JUDGMENTS AND OTHER EXECUTIVE

TITLES

Sub-title I

GENERAL PROVISIONS

252. Saving any other provision of the law in respect of warrants in factum, execution by any of the means mentioned in article 273 may be issued only in virtue of an executive title.

253. The following are executive titles:

(a) judgments and decrees of the courts of justice of
Malta;
(b) contracts received before a notary public in Malta, or before any other public officer authorised to receive the same where the contract is in respect of a debt certain, liquidated and due, and not consisting in the performance of an act;
(c) taxed bills of judicial fees and disbursements, issued in favour of any advocate, legal procurator, notary public, perit, judicial referee or witness, unless such taxed bills are impugned according to law;
(d) awards of arbitrators registered with the Malta
Arbitration Centre;
(e) bills of exchange and promissory notes issued in terms of the Commercial Code:
Provided that the court which is competent according to the value of the bill of exchange or promissory note may, by decree which shall not be subject to appeal, suspend the execution of such a bill of exchange or promissory note in whole or in part and with or without security, upon an application of the person opposing the execution of such bill of exchange or promissory note, to be filed within twenty days from the service of the judicial letter sent for the purpose of rendering the same bill of exchange or promissory note executable, on the grounds that the signature on the said bill of exchange or promissory note is not that of the said person or of his mandatory or where such person brings forward grave and valid reasons to oppose the said execution and in such case any person demanding the payment of the bill of exchange or promissory note shall file an action according to the provisions of the Commercial Code.
The judicial letter referred to above in this proviso shall, under pain of nullity, notify the debtor of the right given to him by this proviso;
(f) mediation agreements made enforceable by the parties thereto in accordance with the provisions of the Mediation Act;
(g) decisions of the Consumer Claims Tribunal.

254. Repealed by: XII.1985.8.

255. The following may be enforced after the lapse of twenty- four hours from delivery:

(a) any judgment on any collateral issue or any interlocutory decree, provided the time for enforcement is not stated in the judgment or decree itself;
(b) any judgment rescinding a warrant of impediment of departure of any ship, or rescinding any warrant of seizure or any garnishee order relating to ships or merchandise;
(c) any judgment ordering the supply of maintenance;
(d) any award of an arbitrator in accordance with the
Arbitration Act.

Cap. 13.

Cap. 474. Judgments

ordering release

from imprisonment

for debt to be

enforceable

immediately.

Judgments enforceable after twenty-four hours. Amended by:

XXIV. 1995.130; XXXI. 2002.86.

Cap. 387.

256. (1) Any other definitive judgment which does not contain any suspensive condition, and which condemns a debtor to pay a liquidated sum, or to deliver up or surrender a specific thing, or to perform or fulfil any specific act or obligation whatsoever, may be enforced after two days from the day of its delivery.

All other judgments to be enforceable after two days from delivery. Amended by:

IX. 1886.47.

Other executive titles to be enforceable after two days from judicial intimation.

(2) The enforcement of any other executive title may only take place after the lapse of at least two days from the service of an intimation for payment made by means of a judicial act.

Power of court to abridge time for enforcement of judgments.

Procedure for enforcement of executive titles. Amended by:

IX. 1886.48. Substituted by: XXII. 1963.2; XXIV. 1995.131; VII. 2007.21. Amended by:

XII. 2009.4.

Procedure for enforcement of executive title where debtor is dead.

Amended by: IX. 1886.48; XXIV. 1995.132.

257. The court may, on grounds of urgency, order the enforcem en t of any j udgm ent even before the exp irati on of the times referred to in the last two preceding articles. The order for such enforcement may be made in the judgment itself.

258. Where -

(a) a period of ten years has expired since the day on which according to law an executive title mentioned in paragraphs (a), (c) and (d) of article 253, in respect of judgments and decrees of the Superior Courts could have been enforced; or
(b) a period of five years has expired since the day on which according to law an executive title mentioned in paragraphs (a), (c) and (d) of article 253, in respect of judgments and decrees of the Inferior Courts or of the Small Claims Tribunal could have been enforced; or
(c) a period of three years has expired since the day on which according to law an executive title mentioned in paragraphs (b) and (e) of article 253, or in respect of proceedings taken under article 166A could have been enforced,
the enforcement may only be proceeded with upon a demand to be m a de by an ap plication filed before the com p etent court. The applicant shall also confirm on oath the nature of the debt or claim sought to be enforced, and that the debt or part thereof is still due.

259. (1) The demand by application mentioned in the last preceding article shall in all cases be necessary where it is sought to enforce an executive title against the heirs of the debtor, even t hou gh the per i od r e fer r ed to in th e said ar ticl e shal l n o t have elapsed.

(2) If there be no known heir, or if the heir has not as yet declared his intention as to the acceptance of the inheritance, a curat o r shall b e ap pointed to represent t h e inheri tance, and execution proceedings shall be taken against such curator.
(3) The time allowed to deliberate upon the acceptance of the inheritance shall not operate as a stay of the execution proceedings.
(4) The heirs, successors or assignees of the creditor may, by app licat ion served on t h e deb t or, his s u cc essors or as signees, request the court to enforce any executive title in the name of the creditor even though the period referred to in the previous article shall not have elapsed. Such request shall be allowed by the court if it is satisfied that:
(a) the applicants are the sole heirs, successors or assignees of the creditor;
(b) the executive title is still valid for what is being
claimed; and
(c) the persons against whom enforcement is sought are the debtor, or his heirs, successors or assignees.

260. Saving the provisions of article 353, the enforcement of any of the executive titles referred to in article 253, may be carried out on the movable as well as on the immovable property of the debtor, as the creditor shall state.

261. Any creditor of the same person under more than one executi ve tit le wi thin th e juri sd ictio n o f th e same court , may enforce such executive titles jointly in respect of all the claims due.

262. The receipt of any payment on account of the debt, or the fulfilment of or the release from any part of the claim, shall not operate as a waiver of execution in respect of that part of the debt or claim as yet unpaid or unfulfilled, unless the contrary be made to appear.

263. (1) It shall be lawful for the creditor of a creditor, by sworn application, to enforce or prosecute the enforcement of the title which his debtor was entitled to enforce.

(2) The sworn application shall be served on the debtor against whom enforcement is sought and on his creditor.

Executive titles to be enforceable on movable and immovable property of debtor. Amended by:

IX. 1886.50.

Joint enforcement of executive titles. Amended by:

IX. 1886.51.

Payment or fulfilment in part

of debt or claim not

to operate as

waiver of

execution.

Amended by:

IX. 1886.52.

Enforcement by creditor of creditor. Amended by:

IX. 1886.53; XXII. 2005.41.

264. (1) Save as otherwise provided in this Code, judgments are enforceable by th e c ourt by whic h they are delivered, even though the execution is to take place beyond the limits of the local jurisdiction of such court.

(2) Any other executive title mentioned in article 253 is enforceable by the co urt compete n t to ta ke cognizance of the subject-matter thereof.

By which court executive titles are enforceable. Amended by:

IX. 1886.54.

265. In cases of appeals, the judgement shall be enforceable by the court of first instance independently of whether the Court of Appeal confirms, varies or reve rses the ju dg em en t o f th e court of first instance.

266. (1) Except in the cases mentioned in article 267, a judgment wh ich do es not constitute a re s judicata shall not be enforceable unless, on the demand of the interested party, such ju dgment has been declared by the co urt to be provisional l y enforceable.
(2) Such demand shall be made by means of an application which shall be served on the opposite party who shall be entitled to file an answer thereto within two working days.
(3) The court of first instance shall, after summarily hearing the parties, dispose of the application as soon as may be after the filing thereof:

Enforcement of judgment of appellate court. Amended by: IX. 1886.55;

XV. 1913.78. Substituted by: XXXI. 2002.88.

Provisional enforcement of judgments by order of the court. Substituted by: XXII. 1963.3.

Provided that -
(a) if the application is filed before the delivery of the judgment, the court of first instance shall dispose of the application as soon as may be after such judgment is delivered; and
(b) if, on appeal from the judgment of the court of first instance, the lodging of the record of the proceedings before the appellate court takes place prior to the disposal of the application by the court of the first instance, such application shall be dealt with and disposed of by the appellate court, and, in any such case, if the answer to the application has not been filed prior to such lodging, it shall be filed in the appellate court.
(4) Where the court of first instance has declared a judgment to be provisionally enforceable, the appellate court may, at any time before delivering judgment, on the application of the interested party, confirm, vary or revoke the decision.
(5) The provisions of sub-article (2) shall apply to any application filed under the last foregoing sub-article.
(6) Where a demand for a declaration under subarticle (1) is not made to the court of first instance, such demand may be made to the appellate court at any time prior to the delivery of the judgment on appeal.
(7) The court shall declare the judgment to be provisionally en forceable if it is satisfied t h at delay in the execut ion of th e
ju dgm en t is li kely to cau s e greater prejudice to the party
demanding a declaration under subarticle (1) than such execution would cause to the opposite party.
(8) The party against whom execution of a judgment declared provisionally enforceable under this article is sued out, shall, in case of reversal or variati on of such judgment, be ent itled to damages and interest.
(9) The court before which the record of the proceedings relating to a judgment declared provisionally enforceable under this article is for the time being lodged, may at any time order the party entitled to the execution of such judgment to give to the opposite p a rty su ff i c ient security fo r th e paym ent of t h e dam a ges and interest which may become due under sub-article (8).
(10) Where a judgment has been declared provisionally enforceable under this article, its execution shall be stayed if the interested party gives sufficient security for the execution of the judgment on its becoming res judicata, including, where the matter refer s to th e payment of moneys, securi ty for th e payment of interest, and, where the matter refers to other things, security to make good any damage which may be caused thereto through his negligence or fault and to restore any fruits derived therefrom.
(11) If any question arises as to the sufficiency of the security tendered under sub-article (10), the court may give such directions
as it may deem proper as to whether the execution of the judgment should be suspended until such qu estion is decide d by another judgment constituting a res judicata.
(12) In this article the expression "court of first instance" shall be construed as if it included a reference to the Rent Regulation Board.

267. The following shall be in all cases provisionally enforceable:

(a) any judgment referred to in article 255(c);
(b) any judgment providing redress against infringement of the individual’s right to life or providing remedies against illegal arrest or forced labour; and
(c) any interlocutory decree.

Provisional enforcement by operation of law. Substituted by: XXII. 1963.4. Amended by: XXIV. 1995.133.

268. The provisions of articles 255, 256 and 257 shall apply to any provisional enforcement.

269. An appeal from a judgment authorizing the enforcement of another judgment, shall in no case operate as a stay of execution of such other judgment.

270. The Director of the Public Registry shall not receive any note of refer e n c e r e su lting from a ju dgment relating to any hypothecary registration unless an authentic copy of the judgment together with a certificate from the registrar that no appeal against such judgment has been entered and that the time for entering an appeal has elapsed or that the judgment is not subject to appeal, as the case may be, are delivered to the said registry with the aforementioned note:

Provided that the foregoing shall not apply where the Director of the Public Registry is party to the suit, in which case he shall take the necessary steps as aforesaid as soon as the judgment has become a res judicata.

Other articles applicable to provisional enforcement. Substituted by: XXII. 1963.5. Amended by: XXIV. 1995.134.

Appeal from judgment authorizing enforcement of other judgment, etc.

Amended by: XXII. 1963.7.

Condition for registration in Public Registry of notes of reference deriving from a judgment.

Added by: IX. 1886.56.

Substituted by: XXIV. 1995.135.

271. It shall be lawful for a litigant to sue out execution of such heads of a judgment as are in his favour, notwithstanding an appeal from such heads as are against him.

272. In the absence of an express provision of law to the contrary, the court may, in the course of the execution of an executive title, on the application of the court executive officer, or the parties, or any other interested person, without delaying such execution, adopt such measures as it may deem necessary in order to safeguard the rights of the parties.

Enforcement of part of judgment notwithstanding appeal from another part.

Power of the court in the execution of titles.

Substituted by: XXXI. 2002.89.

Executive acts. Amended by: IX.1886.57, 58; XII. 1985.9. Substituted by: XIV. 2006.4. Amended by: VII. 2007.35; VIII. 2010.61.

273. The executive titles mentioned in article 253 may, according to circumstances, be enforced by any of the following executive acts:

(a) warrant of seizure of movable property;
(b) warrant of seizure of immovable property;
(c) warrant of seizure of a commercial going concern;
(d) judicial sale by auction of movable or of immovable property or of rights annexed to immovable property;
(e) executive garnishee order;
(f) warrant of ejection or eviction from immovable property;
(g) warrant in factum;
(h) warrant of arrest of sea vessels; (i) warrant of arrest of aircraft;
(j) warrant in procinctu.

Preparation and issue of executive warrants. Amended by:

XV. 1913.79; XXIX. 1939.2;

L.N. 4 of 1963;

XXXI. 1966.2;

XIV. 1980.4;

XXIV. 1995.136;

XXXI. 2002.91;

XIV. 2006.5.

274. (1) Any of the warrants or the order mentioned in the last preceding article is issued by the court on the demand of the party suing out execution:

Provided that where in the opinion of the registrar the signature of the judge or magistrate empowered to issue a warrant of seizure of movable property or an executive garnishee order, cannot be obtained within a reasonable time and that delay may be prejudi cial, the said warrant or order may be issued over the sig natu re o f the regi st rar personall y after hav ing fi rst obtai ned verbal authoris ation fr om th e judg e or magi strate to do so, the judge or magistrate shall append his own signature under that of the registrar at the earliest opportunity as proof that the said authority had been given or, if it is not possible for the registrar to obtain such authorisation, the registrar shall issue the said warrant or order over his signature subject to the ratification of such action by a j udg e o r ma gist rat e as so on as possible and no action shall be available to impugn the regularity of such warrant or order on the grounds that the warrant or order could have been issued over the signature of a judge or a magistrate, as the case may be.
(2) The demand for the issue of the warrant or order shall be made by application, and such application shall indicate the sum and, or the article due in virtue of the title, and also such remedies and, or provisions that are being demanded.
(3) Where the executive title be other than a judgment of the court to which the demand is made, a copy of such title and of the act containing the intimation, where such intimation is required under article 256, shall be filed together with the demand.
(4) If by the same warrant or order it is sought to recover also judicial costs, the amount thereof shall be stated in the demand and the taxed bill of such costs shall be attached thereto.

275. (1) The court executing officer may, in connection with the execution of any warrant committed to him, after calling in two witnesses, exercise all such powers as are reasonably required of him to execute the warrant, which includes the breaking open of any outer or inner door as well as any box or other thing in which there might be effects liable to seizure, saving the exceptions laid down in this Code.

(2) In the case of any warrant for the seizure of any property of th e Government of Malta, the co urt execut ing officer shall not execute such warrant before the lapse of four working days from the day on which he shall have communicated in writing the issue of such warrant to the officer charged with the custody or care of such property.
(3) The Prime Minister may from time to time by regulations establish a list of property pertaining to the State which may not be the subject of an executive or a precautionary warrant.

Powers of executing officer. Amended by:

XI. 1859.14;

L.N. 148 of 1975.

Re-numbered and

amended by:

XIV. 2006.6.

Previous notice in case of warrants for seizure of Government property.

276. No opposition to the execution of any warrant or garnishee order shall be considered until the execution has been effected.

277. (1) Saving the exceptions laid down in this Code, no warrant or garnishee order may be executed other than during such time as may be prescribed by the Minister responsible for justice by regulations made under this article.

(2) Regulations made under this article may also provide for such c a ses in which the exe c utio n o f a warr an t or an or der is allowed to take place other than during the prescribed time, the method of execution and the statements which have to be included in the certificate of service:
Provided that, for reasons of urgency to be confirmed on oath by the applicant, the court may allow the execution of any warrant or order other than during the prescribed time.

No opposition to the execution of warrants.

Re-numbered by: XIV. 2006.7.

Time for execution of warrants and orders.

Amended by: IX. 1886.62; XIX. 1965.13;

XXIV. 1995.138. Re-numbered and substituted by:

XIV. 2006.8.

278. (1) The court executing officer shall deliver a copy of the w a rran t or o r der at th e f i rst av ail a b l e op po rt un it y to t h e p a rt y against whom it is issued, or to his lawful representative.

(2) Unless the court shall otherwise direct, or unless otherwise prescribed by the Minister responsible for justice as prescribed in article 277(2), the court executive officer shall execute the warrant or order w ithout delay, and, on t h e execution thereof, he shall return it to the registrar together with a certificate stating whether the warrant or order was executed: in the affirmative, the certificate shall also state the details of the execution, and in the negative, the reason why the execution was not effected.

Service of copy of warrant on party against whom it is issued.

Amended by: IX. 1886.63; XIX. 1965.14; XIV. 2006.9.

Warrant to be executed without delay.

Damage in case of nullity of warrant or its execution. Amended by:

XIV. 2006.10.

Duty of notary to give notice to registrar of the publication of a deed ordered by a judgment.

Added by: XV. 1913.80. Amended by: XI. 1977.2; XIII. 1983.5;

XXIV. 1995.139; L.N. 407 of 407.

Re-numbered by: XIV. 2006.11.

How executive acts may be impugned. Added by:

XXIV. 1995.140. Amended by:

IV. 1996.5.

Re-numbered and

substituted by:

XIV. 2006.12.

Appeal from decree.

279. The nullity of any warrant or order or of the execution thereof shall entitle the party against whom the warrant or order is issued to an action for damages and i nterest against t he person suin g out execution if t h e nul lity ar ises o u t of any act of such person, or against the court executing officer who executed the warrant or order if the nullity arises out of any act of the court executing officer.

280. (1) Any notary before whom any deed under a judgment is received shall, within fifteen days, and on pain of a penalty not exceeding forty-six euro and fifty-nine cents (46.59), or such greater sum not being more than two hundred and thirty-two euro and ninety- four cents (232.94) as the Minister responsible for justice may from time to time by order in the Gazette establish, to be awarded by the court and enforceable as a civil debt give notice to the registrar of the publication of such deed.

(2) The registrar shall make an entry of such notice at the foot or in the margin of the judgment and shall, on request, deliver to the notary a certificate that the notice has been given.

281. (1) Without prejudice to any other right under this or any oth e r l a w, the person against who m an executi v e act has b e en i ssu ed or an y o t h e r pe rs on w h o h a s an i n te rest m a y m a k e an application, containing all desired submissions together with all docum en ts sustaining such application, to the court issuing the executive act praying that the executive act be revoked, either totally or partially, for any reason valid at law.

(2) The application shall be served on the opponent who shall, within ten days, file a reply containing all submissions which such opposit e party may wi sh to make t ogether with all docu m ents sustaining the reply which are within its ability to file:
Provided that the court may, in urgent cases, reduce the period referred to in this subarticle. In default of such opposition the court shall accede to the demand.
(3) The court shall decide on the application after hearing the parties and rec eiving such evidenc e as it may deem fit, if it so considers, within a period not later than one month from the filing of the said application.
(4) An appeal from a decree delivered under subarticle (3) may be entered by application within six days from the date on which the decree is read out in open court. The Court of Appeal shall appoint such appeal for hearing within one month from the date when the decree is read out in open court, and the appeal shall be decided wi thin th ree month s from the date when it has been appointed for hearing.
(5) The security referred to in article 249 shall not be required in the cases referred to in the previous subarticle.

Sub-title I

OF THE WARRANT OF SEIZURE OF MOVABLE PROPERTY

282. The warrant for the seizure of movable property shall, besides the particulars stated in article 274, contain Court orders about:

(a) (i) the appointment of the day, place and time for the judicial sale by auction and the subsequent seizure and removal thereupon of all such articles from the place which has been indicated by the creditor or from the person of the debtor; or
(ii) the seizure from the place indicated by the creditor, including from the person of the debtor, of any such article which the debtor may possess or such article or articles as may be mentioned in the warrant; and also that after the execution of the warrant, the court executing officer shall be ordered to fix, together with the advocate or the legal procurator of the creditor, the day when the judicial sale by auction is to be held in consultation with the executing officer responsible therefor, and such executing officer shall also fix with the creditor the date, which shall at least be seven days prior to the date of the judicial sale by auction, when the removal of the articles which the executing creditor selects to have removed shall take place;
(b) the execution of the warrant, if so required, after legal hours or on a Sunday or public holiday, and if after two attempts to execute the warrant the court executing officer fails to effect such execution, he shall be authorised to force open the place;
(c) the transport of the property seized and to be removed to the storage places indicated by the consignee, and about the transfer of their possession from the debtor to the consignee;
(d) the appointment of a consignee and the taxing and receipt of payment due to the consignee by the creditor for such period during which the articles seized and to be removed would be under the care of the consignee, so however that such payment may be divided in proportion to the periods established by the Registrar depending on the nature of the articles seized and to be removed. Such payment is made subject to the right of regress against the debtor when such right exists;
(e) the appointment of experts to make a valuation of the property seized, if so required by law, either in special circumstances which the court may deem appropriate, or on the demand of any interested party or of the

Warrant of seizure on movable property.

Added by: XIV. 2006.14.

Amended by: XII. 2009.23.

Cap. 342.

debtor;
(f) the appointment of an auctioneer who shall receive a fee in terms of the Auctioneers Act, if so required by law;
(g) an order for the judicial sale by auction of such articles as are seized and to be removed on the appointed day in terms of regulations to be made by the Minister responsible for justice, without further service of any notice to the debtor.

Description of property seized. Added by:

XIV. 2006.14. Amended by:

XII. 2009.23.

Contents of certificate in case of unsuccessful execution.

Payment of the amount due. Added by:

XIV. 2006.14. Amended by:

XII. 2009.23.

283.(1)(a)The court executing officer shall attach to the said warrant a detailed description of the property seized.
(b) The creditor or the debtor or any interested party may demand the court executing officer to take any photograph or filmshot of the detained articles either by electronic or by any other means at the expense of the party making the demand.
(2) If the court executing officer finds no movable property, or finds only such property as is not liable to seizure, he shall make a certificate to that effect, stating therein the nature of the movable property, if any, not liable to seizure, and he shall attach such certificate to the warrant.

284. (1) When a warrant of seizure is being executed, it is only the full amount claimed by the creditor that may be paid by the debtor to the court executing officer.

(2) The court executing officer shall describe in detail the property seized and -
(a) where the property includes any merchandise, he shall cause such merchandise to be weighed, measured or gauged, as the case may be;
(b) where money or securities for money, jewellery, or articles of precious metal are seized, he shall accurately state the amount or nominal value or weight thereof and he shall within the shortest time possible take the same to the registry and lodge them therein by means of a schedule;
(c) where papers are seized, he shall seal them and deliver them to the Registrar, and such seals may not be removed except by the authority of the court.

Seizure of other movable property. Added by:

XIV. 2006.14. Substituted by:

XII. 2009.23. Amended by:

V. 2010.3.

285. (1) Seizure may be effected on any movable property including:

(a) shares in commercial partnerships;
(b) licences issued by any competent authority as may be established by regulations made by the Minister responsible for justice;
(c) insurance policies;
(d) credit securities and any intellectual or industrial
property right:
Provided that on such property the warrant shall have effect as from the date of the service on such authority or such person who would have issued such movable property. Any transfer made or burthen incumbent on such property after that date shall be ipso jure null as from the date of the service of the certificate of seizure to such person or authority issuing same:
Provided further that, in respect of any shares or securities registered at a central securities depository, as defined in terms of article 2 of the Financial Markets Act, a warrant of seizure shall also be served on such central securities depository and shall take effect only if no transfer order or netting affecting the said shares or securities shall have been entered in a securi ties settl em ent system, authorized in terms of article 34 of the Central Bank of Malta Act, prior to the service of the warrant to the depository.
(2) Where in any commercial partnership its statute attributes any right of preference with regard to the transfer of shares, the shareholders shall be informed of the date when such sale is due to take place and they may exercise the said right during that sale.
(3) When the judicial sale by auction of an insurance policy is due to take place, notice shall be given to the insurance company of the date of such sale.

Cap. 345.

Cap. 204.

286. (1) Such property as is removed from the possession of the debtor, in terms of article 282(1)(c) subject to the provisions of article 293, shall be transferre d forthw ith to be retain ed in the hands of the consignee in the pr es ence of the co urt e x ec uting officer, and the consignee shall receive and hold such property in a storage place authorised by the Registrar until such time as that property is sold or the consignee is ordered to do otherwise.
(2) The consignee shall issue a receipt, to be signed by him, for such property as would have been seized and removed from the possession of the debtor and which he would have received:
Provided that the consignee may, with the written consent of the Registrar, retain such property in any place other than the official storage place in such circumstances where, due to the nature or the size of the articles seized, it would not be feasible to dispose otherwise.

Consignee. Added by: XIV. 2006.14. Amended by: XII. 2009.23.

287. A consignee may not be appointed under this Title when he is either:

(a) the execution creditor;
(b) the husband or wife of the debtor or of the creditor;
(c) the father or mother of the creditor, his daughter or son, or his brother or sister, his uncle or aunt, his father-inlaw or mother-in-law or her husband or his son-in-law or daughter-in-law;
(d) directly or indirectly employed with the creditor;
(e) the person who claims to be the owner of the property

Persons who may not act as consignees.

Added by: XIV. 2006.14.

Amended by: XII. 2009.23.

seized.

Attendance of the consignee.

Added by: XIV. 2006.14.

Amended by: XII. 2009.23.

Consignee to preserve property seized.

Added by: XIV. 2006.14. Amended by:

XII. 2009.23.

288. At the time of execution of the warrant of seizure under ar ticl e 28 2, the co nsig nee shal l at tend to geth er with t h e cou r t executing officer to execute the warra n t. The c o urt executing o ffi cer m a y seize an d remov e property w itho u t info rm ing the creditor.

289. (1) The consignee shall be responsible for the proper preservation of the property entrusted to him and he shall not use, n o r shal l he allo w any person to u s e , such prop ert y u n l e ss otherwise ordered by the court:

Provided that the debtor may be allowed to use or retain in possession such articles of the property seized as the court may authorise if the cour t consid ers that su ch arti cles are normally required by an average household for decent living to maintain the human dignity of the debtor and his family.
(2) Where the property seized is of a perishable nature, the Registrar shall, without further authorisation, sell the goods seized and with the profit made from that sale, he shall proceed according to the provisions of article 284.

The consignee to act as a bonus paterfamilias. Added by:

XIV. 2006.14. Amended by:

XII. 2009.23.

Other creditors may not oppose execution. Added by:

XIV. 2006.14. Amended by:

XII. 2009.23.

290. The consignee is bound to exercise for the safe keeping of the property seiz ed, such ca re as is exerc i sed by a bonus paterfamilias; if the consignee fails to present such property when called upon to do so, the court shall order him to appear before it to explain his failure to do so; the consignee shall be responsible for dam a ges and in ter e st an d t h e court, after examining the circumstances of the case, may issue such orders as appear to be appropriate, including the personal arrest of the consignee for a period not exceeding three months, to compel him to present such property. The failure o f the consignee to present such property when ordered by the court shall of itself constitute contempt of court in terms of the applicable provisions under this Code.

291. The creditors of any person, whose property has been seized, may not, for any cause whatsoever, make any opposition to the execution of the warrant or to the sale of the property:

Provided that it shall be lawful for such creditors to enforce their claim on the proceeds of the sale of the property seized.

No identification is to be made of property already seized.

Added by: XIV. 2006.14.

Amended by: XII. 2009.23.

The warrant may be executed on new articles other than those already seized.

292. (1) If, when executing a warrant of seizure, the court executing officer finds that another warrant has already taken place and that the articles have not b een remo ved, h e shall li kewi se execute the warrant again at th e pl ace ind i cated to hi m by the creditor. Identification of the property so seized shall no longer be permitted. The court exec uting office r shall, at the cre d itor ’s expense, inform the creditors that on their demand other warrants had been executed by means of the first warrant.

(2) When a consignee has already been appointed, and the articles have been removed, no other warrant may be executed on such articles.

293. (1) The property mentioned hereunder is not subject to seizure:

(a) such clothes for daily wear, bedding and such utensils and furniture as are considered reasonably necessary for the decent living of the debtor and his family;
(b) personal documents and books relating to the profession of the debtor, of his wife or of his children;
(c) the registers and minute-books of notaries public;
(d) tools and implements necessary for the instruction in or the exercise of any science or of any art of the debtor, of his wife or of his children;
(e) animals and tools required for agriculture and any fruit either cut or not yet separated from the ground;
(f) aircraft, exclusively appropriated to a state service, including the postal service, but excluding commercial service;
(g) sea vessels wholly chartered in the service of the
Government of Malta;
(h) sacred vestments and vessels which are used in a consecrated church, or belonging to a priest, a religious order or any member thereof;
(i) any property of any member of the Police Force or of the Armed Forces of Malta being arms, ammunition, equipment, instruments or clothing used by him in the discharge of his duties:
Provided that any such property as is mentioned in paragraphs (a) to (g) may be seized -
(i) if the execution is demanded in respect of the price of such property;
(ii) if the execution is demanded in respect of rent or ground-rent of the tenement in which such property is kept;
(iii) if the executive title by virtue of which the warrant has been issued specifically condemns the debtor to effect the return of such property.
(2) The seizure may be effected of unseparated movable property belonging to both debtor and a third party, insofar as no sale of such property may take place except after their separation.
(articles 294 to 304 were deleted by XIV. 2006.13).

Property not subject to seizure. Added by:

XIV. 2006.14. Amended by: XII. 2009.23.

304A. The procedure for the sale of movable property shall follow the same procedure, mutatis mutandis, as that referred to in article 305.

Procedure for the sale of movable property.

Added by: XII. 2009.5.

Sub-title II

OF THE WARRANT OF SEIZURE OF IMMOVABLE PROPERTY

Form of demand by application. Amended by:

IX. 1886.67; XV. 1913.82;

XI. 1984.2; VIII. 1990.3;

XXIV. 1995.145. Revoked by:

XIV. 2006.16.

Added by:

XIV. 2006.15.

Re-numbered by:

VII. 2007.30.

Amended by:

XV. 2008.22.

305. (1) The demand for the seizure of immovable property is made by an application.

(2) The application shall contain a detailed description of the property of which the sale by auction is demanded, including the m ode in which the property has been acquired and any burthen attached to the same land and a plan clearly indicating the site:
Provided that the provisions of this article apply to ships or other vessels exceeding ten metres in length and such articles shall also be described in detail, including any rights and encumbrances thereon; and an appraisement shall only be made if required by the creditor or by the debtor.
(3) In the event of a decree as provided in the proviso to subarticle (2), the procedure to be followed shall be that laid down in thi s Sub - tit le for th e jud i cial sale by auctio n o f i mmovabl e property.

Duties of the court.

Amended by:

IX. 1886.68;

XV. 1913.83;

XXXI. 1934.40;

IX. 2004.8.

Revoked by:

XIV. 2006.16.

Added by:

XIV. 2006.15.

Re-numbered by:

VII. 2007.30.

Amended by:

XII. 2009.6.

306. (1) In the court decree ordering the issue of a warrant of seizure of immovable property, the court shall:

(a) order the Registrar to appoint experts in terms of article 89 as may be required and to fix a short and peremptory time within which such appraisments have to be filed and give any such order as may be necessary for the better execution of such appointment;
(b) appoint a day, time and place for the judicial sale;
(c) order the Registrar to inform the Director of the Public Registry and the Registrar of Lands or any competent authority which may be appointed according to regulations made by the Minister responsible for justice, about the issuing of the decree on the first working day thereafter;
(d) order the Registrar of the Public Registry to register forthwith the decree in a book kept for the purpose at the Public Registry, which book shall be accessible to the public; and
(e) appoint a public auctioneer who shall receive a fee in terms of regulations made by the Minister under this article.
(2) Such decree shall be served on the debtor.

307. (1) Within twenty days from the time notice of the court decree is served on the debtor, he may file a separate appraisment and demand that a new appraisment need not be effected, provided that such appraisement be a sworn appraisement.

(2) The sworn appraisement filed by the debtor shall, within twenty days, be served on the creditor who shall then have twenty days to lodge an opposition to it.
(3) When a creditor lodges such opposition to the appraisement f iled by the debto r, th e co urt shall , after h e ari ng bot h p a rties, decide whether it shall appoint a new expert or not.
(4) An appraisement of the property to be sold shall always be made before the sale takes place provided that if an appraisement, made not earlier than twelve months before the judgement that is being executed, has been accepted by the court in its judgement, the court shall take cognizance of such appraisement and it shall not appoint new experts to effect a new appraisement.

Appraisement by debtor.

Amended by:

IV. 1994.2;

XI. 1984.3;

XXIV. 1995.146.

Revoked by:

XIV. 2006.16.

Added by:

XIV. 2006.15.

Re-numbered by:

VII. 2007.30.

Amended by:

XII. 2009.7.

308. (1) The expert shall always be appointed by the court ex officio, according to the panel established in article 89 and on a rota system, unless the parties shall have already filed a note submitting the name of an expert agreed on between them, or the appraisement filed in terms of article 307 has been accepted.
(2) The expert shall draft a valuation of the property together with a detailed description thereof, including encumbrances and burthens, and file same under oath with the Registrar.
(3) The debtor shall under oath give such information relating t o th e p r op erty as may be r e qu ired b y th e Reg i st rar or by t h e experts, and the provisions relating to evidence shall apply to the debtor.
(4) The appraisement may not be contested but the court may, by way of an application, order the correction of any mistake made in the description or appraisement.
(5) The expert appointed under this Title shall be remunerated in terms of a tariff to be established according to regulations made by the Minister responsible for justice.

Expert to be appointed by court, unless agreed on

by parties.

Amended by:

XXIV. 1995.147.

Revoked by:

XIV. 2006.16.

Added by:

XIV. 2006.15.

Re-numbered by:

VII. 2007.30.

309. In any appraisement of gold or silver articles, the expert shall state separately the intrinsic value thereof and the cost of manufacture, as well as the total.

Appraisement of gold or silver articles to show intrinsic value, etc. Revoked by:

XIV. 2006.16. Added by:

XIV. 2006.15.

Re-numbered by:

VII. 2007.30.

Valuation of immovable property to contain description of property, etc. Amended by:

XXXI. 1934.41; XXIV. 1995.148. Revoked by:

XIV. 2006.16. Added by: XIV. 2006.15.

Re-numbered by: VII. 2007.30.

Debtor may be compelled to give information required for the purposes of the valuation.

Debtor to be called upon by letter from registrar.

Applicability to debtor of provisions relating to witnesses.

Valuation or appraisement to be sworn by expert. Amended by:

X. 1856.5; VI. 1880.23; VIII. 1990.3; XXIV. 1995.149. Revoked by:

XIV. 2006.16. Added by:

XIV. 2006.15.

Re-numbered by:

VII. 2007.30.

Taxation and payment of expert’s fee.

310. (1) In the valuation of immovable property, the experts sh all in cl ude a description of the property stating the bu rdens, leases and other rights whether real or personal, if any, to which the property is subject, as well as the last transfer of such property according to the information obtained from the creditor or the debtor.

(2) It shall be lawful, at the written or verbal request of the expert or the creditor, to compel the debtor to confirm on oath, to be administered by the court or the registrar, the information given to or required by the expert.
(3) The debtor shall be called upon to give the above information by means of a letter from the registrar.
(4) The provisions relating to witnesses shall apply to any debtor called upon as aforesaid.

311. (1) The report containing the valuation or appraisement shall be filed by the expert within the time allowed in the decree of the court according to circumstances, and be sworn by him in the presence of the Registrar.

(2) Where a sale by auction of immovable property or of rights annexed to immovable property situated in the Island of Gozo or of Comino, is ordered by any of the superior courts, it shall be lawful for such court to order the expert to swear his report at the Court of Magistrates (Gozo) in the presence of any of the officers mentioned in article 57(2)(a) to (c), and to deliver the said report, so sworn, to the said officer, to be by him transm itted to the superior court which made the aforesaid order.
(3) When a sale by auction of immovable property or of rights annexed to immovable property situated in the Island of Malta, is ordered by the Court of Magistrates (Gozo), it shall be lawful for such court to order the expert to swear his report in the presence of the Registrar and to deliver the said report, so sworn, to the said Regi st rar, to be by him tran sm itt ed to t he Court of Magistrat es (Gozo).
(4) The fee payable to the expert shall be taxed by the Registrar, subject to appeal to the court. Such appeal shall be made by application by any interested party within one month from the se rvice o f t h e tax e d fee . Suc h fee s h al l alwa ys be paid by t h e creditor, saving his right against the debtor for the reimbursement of such fee together with the other expenses of the sale:
Provided that when an appeal is lodged, the creditor shall deposit the fee taxed by the Registrar and the procedings for sale shall be further proceeded with and brought to a conclusion.

Sub-title III

OF THE WARRANT OF SEIZURE

OF A COMMERCIAL GOING CONCERN

312. The movable or immovable property or the going concerns which are seized from the possession of the debtor, shall be sold by public auction according to the provisions of this Title.

312A. Such auctions shall be held whenever the need arises, there being a sufficient amount of property to be sold.

312B. (1) The provisions of this Subtitle shall apply both to mo vable and im mo vable property and to goin g co ncern s . Th e Registrar and the public auctioneer shall not in any way be impeded fr om sell in g mo vable property, immovable pr operty or a going concern during the same auction.

(2) For the purposes of this Sub-title, the meaning of movable property shall be the same as that given in Sub-title I of this Title and the meaning of immovable property shall be the same as that given in Sub-title II of this Title, saving that in the case of a going con c ern th e meani ng is th at gi ven i n arti cl e 312 K b u t for the purposes of th is Ti t l e a g o in g concern shall be deemed to be immovable property.

Sale by auction of movable or immovable property and going concerns.

Amended by: IX. 1886.69; XXIV. 1995.150. Revoked by:

XIV. 2006.16. Added by:

XIV. 2006.17.

Re-numbered by:

VII. 2007.30.

Auctions to be held whenever the need arises.

Added by: XIV. 2006.17.

Re-numbered by: VII. 2007.30.

Provisions apply both to movable and immovable property and to going concerns. Added by:

XIV. 2006.17.

Re-numbered and

amended by:

VII. 2007.30.

312C. The demand for the seizure of a going concern shall be made by means of an application to be served on the debtor.

312D. In a decree upholding the demand for the issue of a warrant of seizure of a going concern, the court -

(a) shall order the Registrar to appoint such experts according to article 89 who may be required to:
(i) enlist and evaluate all the assets of the going concern;
(ii) file a report whether or not, considering the debt of the going concern, such going concern should be sold or put under administration for a period of time during which it could pay back its debts; and
(b) appoint a short and peremptory time for the filing of

Demand for seizure of a going concern.

Added by: XIV. 2006.17.

Re-numbered by: VII. 2007.30.

Decree upholding the demand for the issue of the warrant.

Added by: XIV. 2006.17.

Re-numbered by: VII. 2007.30.

such appraisements and report and give such orders as may be necessary for the carrying out of these instructions:
Provided that where the enlisting and the appraisement of t h e whol e compl e x wou l d have al ready b e en made i n the proceedings of a precautionary warrant of seizure of a going concern, the court shall adopt same and only appoint experts to file a report whether the going concern should be sold or put under administration.

Appointment of application for hearing.

Added by: XIV. 2006.17.

Re-numbered by: VII. 2007.30.

Appointment of date, place and time for the sale. Added by:

XIV. 2006.17.

Re-numbered by:

VII. 2007.30.

Appointment of administrator. Added by:

XIV. 2006.17.

Re-numbered by:

VII. 2007.30.

312E. Following the confirmation on oath of the appraisements and reports, the court shall within one week appoint the application for hearing and, after hearing the parties, it shall decide whether the judicial sale by auction of the going concern is nevertheless to be proceeded with or an administrator is to be appointed to manage the going concern until the amount due is paid.

312F. Where the court decides about the holding of a sale, it shal l app o in t a date, pl ace and time for the sale of the whol e complex as a going concern.

312G. The court shall appoint an administrator to carry on with the administration of the going concern until it is sold:

Provided that where in the proceedings of a precautionary warrant an administrator would have already been appointed, he shall be confirmed as such.

Applicability of articles 308 to 311. Added by:

XIV. 2006.17.

Re-numbered and

amended by:

VII. 2007.30.

Where court decides that going concern shall continue to be administered. Added by:

XIV. 2006.17.

Re-numbered by:

VII. 2007.30.

312H. Articles 308 to 311 shall apply mutatis mutandis to this warrant.

312I. (1) Where the court decides that the going concern shall continue to be administered until payment of the amount due is effected, it shall appoint an administrator and give such orders and make su ch pro v isions which it deems appropriate, taking into consideration the debt, nature and value of the going concern.

(2) The appointed administrator shall take control of the going concern and he shall have the right to sell and carry on trade in its day to day business, provided that with regard to any decision of an extraordinary nature he shall be bound to demand the court for its authorisation:
Provided that a commercial bank cannot be appointed as administrator.

312J. (1) Nothwithstanding the provisions of article 312I, if during his appointment the administrator is of the opinion that the going concern is about to lose its market value, he may demand the court to authorise him to sell the going concern in whole or in part.

(2) The appointed administrator under article 312I shall be entitled to such payment as the court, in its discretion, may deem fit that he should receive considering the value of the going concern and the work done in connection with the running of the business.

Demand for the sale of the going concern.

Added by: XIV. 2006.17.

Re-numbered and

amended by:

VII. 2007.30.

312K. For the purposes of this Title, the term ''going concern'' means any kind of commercial enterprise conducting a business activity and includes machinery, apparatus, goods, corporeal and incorpo r eal ri ghts, m ovable property, imm ovable p r operty, licences, copyright and good-will.

Definition of going concern.

Added by:

XIV. 2006.17.

Re-numbered by:

VII. 2007.30.

Sub-Title IV

OF JUDICIAL SALES BY AUCTION

Added by: XIV. 2006.18.

313. The Registrar shall publish regularly in two newspapers, one being in Maltese and the other in the English language, lists of the judicial sales by auctions which are about to be held and he shall indicate clearly therein the property in such manner that the public is well informed in order to safeguard the parties’ interests:

Provided that the debtor, creditor or any other interested p e rson may pub lish an d info rm , at th eir o w n expense, an y particular sale in any newspaper of their choice or broadcast same over any other broadcasting medium.

Form of advertisement of sale by auction. Amended by: XXIV. 1995.151; XIV. 2006.19.

314. (1) Subject to the provisions of this article, the auction shall be held in public either -

(a) in the building of the courts of justice; or
(b) in any other building provided by the Minister responsible for justice for the purpose of such auctions and at such time as may be determined by the court:
Provided that the court shall have the power for just cause to order that an auction shall be held at any place and at any time, due notice of such place and time being given in the advertisement.
(2) In the case of sacred vestments and vessels, the auction shall not be held in public but the court shall give such directions as it may deem proper for their disposal in the manner most advantageous to the interested parties with due respect to the sacred nature of the object to be sold by auction.
(3) In the case of a judicial sale by auction of listed securities in regulated markets, the auction shall be held in accordance with the procedures prescribed in rules and bye-laws made under articles
4(2) and 28(2) of the Financial Markets Act.

Place and time of sale by auction. Amended by:

XIII. 1925.3; XXXI. 1934.42;

L.N. 4 of 1963; XXXI. 1966.2; XXIV. 1995.153.

Re-numbered and amended by:

XIV. 2006.21.

Amended by:

XII. 2009.8.

Cap. 345.

Valuation of property to be sold by auction.

Added by: XIV. 2006.22. Amended by:

VII. 2007.30.

315. (1) Immovable property or rights annexed to such property, or movable property consisting of gold or silver articles, pearls or p r eci ous stones or of other precious articles, and commercial going concerns, shall always be appraised before the sale thereof by auction.

(2) With regard to other movable property, an appraisement shall only be made if required by the creditor or by the debtor.
(3) An appraisal made in conformity with the provisions of articles 308, 311 and 312F and existing in the records of a sale by auction shall be accepted by the court to be the appraisement for the purpose of this article.

Appraisement of gold or silver articles to show intrinsic value. Added by:

XIV. 2006.22.

316. In any appraisement of gold or silver articles, of pearls or preci ous st ones or of oth e r preci ous art i cles the expert shall consider the intrinsic value thereof and the cost of manufacture, together with any distinctive characteristic of the said article and appraise the total value thereof.

Removal of movable property to place of sale.

Sale by auction in gross, in lots, or under separate items.

Amended by: XI. 1984.4;

XXIV. 1995.154; XIV. 2006.24.

Opening of sale by auction.

Amended by: IX. 1886.70; XV. 1913.84.

Substituted by: XXIV. 1995.155. Amended by:

XIV. 2006.25; XV. 2008.23.

317. The marshal shall cause the movable property to be removed to the place of sale where it shall be exposed to public view at least two hours before the auction begins.

318. Subject to the provisions of article 305, movable property m a y b e so ld by a u ct io n i n gross, or i n separat e l o t s , or u n d e r separate items, as the court shall direct, regard being had to the circumstances of the case.

319. (1) The auction shall be, save the exceptions mentioned in the preceding articles, conducted by a public auctioneer in the presence of the Registrar.

(2) Bids are made orally. Each bid shall be announced at least three times, unless a higher bid is previously made. The highest bidder, within the time stated in the advertisement, shall be the purchaser.
(3) An offer shall no longer be valid immediately when a higher offer is accepted, even th ough such higher offer is later declared to be null.
(4) The public auctioneer or broker shall be entitled to a fee which is taxed by the Registrar in accordance with a tariff to be established by the Minister responsible for justice.
(5) No offer may be accepted if such offer is less than sixty per cent (60%) of the valu e at which the m o v a ble or immovab l e property or the going concern has been appraised:
Provided that if no offer is made which is at least equivalent to sixty per cent (60%) of the value at which the m ovab le o r i mm ov able p rop ert y or t he go ing concern h as been appraised, the creditor may request that the movable or immovable property or the going concern be placed again for public auction:
Provided that this subarticle shall not apply to ships and other vessels exceeding ten metres in length only.
(6) The public auctioneer shall have the right to demand that a person submitting an offer should be in possession of the necessary guarantees.
320. The auctioneer shall cause that no bid shall be accepted if it is either made pro persona nominanda or by any person who is notoriously incapable of fulfilling the obligations arising out of the adjudication.

321. Repealed by: XXIV. 1995.157.

322. Repealed by: XIV. 2006.27.

323. The Minister responsible for justice shall by regulations establish the duration of the auction.

324. Repealed by: XIV. 2006.29.

325. Repealed by: XIV. 2006.29.

326. (1) The auction or adjudication shall in all cases be suspended upon the demand of the debtor with the consent of the creditor, or upon the demand of the creditor with the consent of the debtor, and in such cases, as we ll a s in the ca s e where the suspen sion is caused by any o t her l a wful impediment, a fresh advertisement shall be issued for the continuation of the auction on another day which shall be appointed by the Registrar within two weeks.

(2) If the suspension of the auction is demanded by the debtor or a third party, without the consent of the creditor, the demand shall not be entert ain e d , unl ess contemporaneo usl y with t h e demand a deposit is made with the registrar of a sum which in his o p inion i s suf f icient t o cov e r the exp e nse o ccasioned by the suspension.
(3) Nor shall any demand for the suspension of an auction be ent ertained if such demand is m ade, with out the consent of t he

Bids pro persona nominanda etc., not to be accepted. Amended by:

XI. 1984.5; XXIV. 1995.156.

Substituted by: XIV. 2006.26.

Bids subject to the issue of edicts.

Binding force of bids.

Amended by:

XI. 1859.17;

IX. 1886.71;

Xl. 1977.2;

XIII. 1983.5;

XXIV. 1995.158.

Duration of auction. Substituted by: XIV. 2006.28.

Adjudication not to be made on day of sale in certain cases.

Amended by. IV. 1984.3;

XXIV. 1995.159.

Appointment of another day for continuation of sale. Adjudication to be made on such other day.

Saving.

Amended by:

IX. 1886.72.

Substituted by:

XXIV. 1995.160.

Suspension of auction or adjudication. Amended by: XV. 1913.85; IV. 1984.4;

XXIV. 1995.161; XIV. 2006.30.

creditor, less th an seven days before the day appointed for the auction, unless the person making the demand shall declare on oath before the registrar, that the reason for the suspension has arisen within that time, or that he was not aware of such reason before that time.
(4) Any interested person may by application request the court to revoke contrario imperio its decree authorising the suspension of the auction or of the adjudication, and the court shall summarily hear the parties before delivering its decree. Any such decree may not be challenged in any court.
(5) The court shall hear the parties about the demand for suspension, and it shall not gi ve its decree re lating to such application prior to a deposit having been made of all the expenses with regard to the judicial sale by auction.

New bids within fifteen days of adjudication. Amended by:

IX. 1886.73; IV. 1984.5;

XXIV. 1995.162;

IV.1996.7.

Payment into court of purchase money. Amended by:

XXIV. 1995.163; XV. 2006.32.

Defaulting purchaser liable to personal arrest. Amended by:

XXII. 2005.42.

Fresh sale by auction at the expense and risk of defaulting purchaser.

Decree to be served on purchaser.

327. Repealed by: XIV. 2006.31.

328. The purchaser shall pay the price into court within seven days from the date of the final adjudication, in the case of sale of immovable property or of rights annexed to such property, or of ships, or of commercial going concerns; and, within twenty-four hours of the adjudication, in the case of other movable property.

329. (1) In default of such payment into court, the purchaser shall, upon the demand by application of the party at whose suit or a g ains t whom the e x ec ution wa s grante d, be liable to personal arrest.

(2) Moreover, in such case, the property adjudicated may, upon a demand by means of an application made by the party at whose suit or against whom the execution was granted, be again put up for auction at the expense of the purchaser; in which case, if the bids be lower, such purchaser shall be responsible for the difference; and if the bids be higher, the difference shall go in favour of the debtor, saving any right thereon of the execution creditor.
(3) The decree made on the said application shall be served on the purchaser.

Lodging of purchase money of movable property.

Delivery of immovable or movable property to purchaser. Amended by:

IX. 1886.74; XXIV. 1995.164;

XIV. 2006.34.

330. The purchase money of movable property sold by auction may be deposited by the purchaser with the registrar, who shall wit h in twenty-fo ur hours lodge it i n to court by m e ans of a lodgment schedule.

331. (1) The delivery of immovable property or of rights annexed to such property, or of commercial going concerns, takes place ipso jure on the final adjudication and upon the payment of the price into court or the approval of the set-off.
(2) The delivery of movable property takes place upon the hand ing o v er o f the t h i ng and th e depo sit of th e pri c e or th e
approval of the set-off.
(3) In the case of ships or other vessels or aircraft, the court may m a ke such or ders, as it may deem f it, to ensur e that t h e property adjudicated be delivered to the purchaser forthwith, upon the purchaser giving such security as the court may determine to safeguard the claims of the parties. Such orders may also be made in other cases in which the court considers that delay in the delivery of the property can cause serious prejudice to the purchaser. An order made under this sub-article shall not be challenged in any way and shall be implemented forthwith.

332. Saving the provisions of article 337(1) and (2), the purchaser is not bound to pay the money into court if he shall have made his bid animo compensandi.

333. (1) Any person to whom a liquidated debt is owing under any judgement or executive title or deed or other obligatory writing may bid animo compensandi.
(2) Any person who is intent on bidding animo compensandi sh all regi ster hi s n a m e by means of a n o t e befo re t h e commencement of the sale by au ction by m a kin g a sw orn declaration before the Registrar about the reason why he wishes to bid animo compensandi.
(3) Any person bidding animo compensandi may be served not ice by any person hav i ng an in terest i n t h e jud i cia l sal e by auction at least two weeks befo re the date of the sale and whosoever is not served such notice or is not served notice within such time may exercise the right under article 356.

No payment into court is necessary on adjudication upon a bid animo compensandi. Amended by:

II. 1940.5. XIV. 2006.35.

Animo compensandi bid. Substituted by: XIV. 2006.36. Amended by:

XII. 2009.9.

334. Any bid animo compensandi is made on condition that the bidder shall bind himself to pay the price into court in case it shall be so adjudged by the court.
335. Any opposition to an application to bid animo compensandi may only be made after the sale. No opposition may be made before or during the sale.

336. Repealed by: XIV. 2006.39.

337. (1) A purchaser animo compensandi shall, within the tim es st ated i n article 328, d em and by means o f an appli cation accompanied by a lodgment schedule, the approval of the proposed set-off, and he shall pay into court the surplus of the price where such price exceeds the amount of the debt and costs, producing the necessary vouchers.

Conditional leave to bid animo compensandi. Substituted by: XIV. 2006.37.

Opposition to bids animo compensandi. Amended by:

XXIV. 1995.165. Substituted by:

XIV. 2006.38.

Conditional leave to several creditors to bid animo compensandi.

Demand for approval of set-off. Payment into court of surplus of price, if any.

Amended by: XIV. 2006.40.

Payment into court of costs incurred

by execution

creditor.

Recovery of costs by execution creditor.

(2) If the purchaser be a person other than the execution creditor, he shall likewise pay into court the amount of the costs incurred by s u c h e x ecution c r e d itor in res p ect of the judic i al recognition of his claim and in respect of the auction proceedings.
(3) The execution creditor shall recover the costs of the auction proceedings unconditionally, and shall recover the legal fees and the costs of the judicial recognition of his claim, upon entering into a bond with sufficient surety to restore the amount thereof to the pu rchaser i n t h e ev en t of evict i o n o f the immo vabl e pr oper t y adjudicated.

Application for approval of set-off. Service of application. Amended by:

XXIV. 1995.166; XIV. 2006.41.

338. (1) The aforementioned demand shall be published in the Go vernm e nt Gazet t e and served on the debtor and al l kn own cred itors, incl uding such person s w ho shall have sued ou t any warrant of seizure or garnishee order or impediment of departure, and such persons as are mentioned in the warrant of seizure which preceded the judicial sale by auction.

Time for answer. (2) Any person who may have an interest and the persons so served shall be allowed the time of twenty days to file an answer stating in detail the reasons for their opposition and the amounts in contestation; and where such opposition is based on a claim against the proceeds of sale an alleged cause of preference, they are to state the amount of such claim and the basis for the preference. Such perso n s sh all wit h th e answer file all relevant evid ence to substantiate their opposition.

Condition which may be imposed by court on approval of set-off.

(3) It shall be lawful for the court, in approving the set-off, to require the purchaser to give sufficient security to pay into court the price together with interest, in case it shall be so adjudged.
(4) When the court upholds the demand, any person who may have an interest to enter suit may within twenty days file an appeal by application, which appeal shall be appointed and decided within three months from the date of the decree.
(5) When the Court of Appeal revokes a decision to grant a bid animo compensandi, it shall remit the judicial proceedings to the first court.

Competition of ceditors. Substituted by: XIV. 2006.42.

Effect of approval or disallowance of set-off.

Amended by: IX. 1886.75; XXIV. 1995.167;

XIV. 2006.43.

339. When there are more than one creditor filing a demand for payment from the proceeds in such manner that a competition of creditors would have to take place, it shall be the same court to commence such proceedings in terms of articles 416 et sequitur.

340. (1) If the set-off be not approved, the provisions of article

329(2) and (3) shall apply:
Provided that whosoever makes made a bid animo compensandi under the condition specified in article 334 shall, within seven days from the date on which he is served with the court order rejecting his application for the set-off, pay the price in the registry of the court in which case the provisions of this article shall not apply. In the event that such party fails to pay the price within such time limit, article 329 shall apply:
Provided further that in the event that the property adjudicated is transferred and delivered to the purchaser in terms of article 331(3)
the provisions of this article shall not apply and the provisions of article 338(6) shall apply to the security ordered to be provided by the court.
(2) If the set-off be approved unconditionally, the purchaser shall be entitled to the formal transfer and delivery of the movable property adjudicated or, in the event that the property had already been delivered under article 331(3), the purchaser shall be entitled to the release of any security made by him.

341. If the proceeds of the sale by auction be not sufficient to meet the claims of the execution creditor and of the persons suing out a garnishee order, as well as the costs, fresh executions may be allowed upon the demand of any of them.

342. If after payment of the claims of the creditors and of the cost s, t h ere sti ll r e main s a balance, the co urt shall, up on th e demand of the debtor, order such balance to be restored to him.

343. If it appears during the sale that a sufficient sum to meet the debts and the costs of the auction has been obtained, the Registrar shall order the auction to be immediately discontinued. Upon a verbal demand by the debtor, the court shall order that the unsold property is to be restored to the debtor.

344. The amount of the debt due to the execution creditor together with his taxed costs shall, upon his demand, be paid to him out of the proceeds lodged into court, provided there be no lawful impediment.

345. In the case of seizure of perishable merchandise or other articles which are in a state of p r og ressi v e deteri oratio n or o f articles which a r e about to go ou t of fa shi o n o r b eco m e technologically obsolete, it shall be lawful for the court, upon the

d e mand of any perso n having an interest or of the of ficial consignee, to order such merchandise or other articles to be sold in
such manner as the court shall deem proper, including the sale to be effected forthwith by the Registrar or by the consignee.

346. (1) Any other creditor may by a note to be served on the execution creditor and the debtor join in the auction proceedings as an addit i on executi on cred itor and such add ition a l execution creditor shall have the same rights and obligations as the original execution creditor.

(2) Any execution creditor can continue the auction proceedings independently of the withdrawal by, or the death of any other execution creditor.

Execution creditor, etc., may demand fresh executions in case of deficiency of proceeds.

Restoration of balance of deposit to debtor. Substituted by: XIV. 2006.44.

Discontinuance of sale by auction and restoration of unsold property to debtor.

Substituted by: XIV. 2006.45.

Withdrawal of amount of claim and taxed costs by execution creditor.

Sale of perishable articles. Substituted by: XIV. 2006.46. Amended by:

XII. 2009.10.

Right of other creditor to continue auction.

Substituted by: XXIV. 1995.168.

347. (1) The registrar shall draw up a procès-verbal, specifically stating therein the day and hour of the auction, the nature of the property put up for auction, the name, surname and place of abode of the highest bidder and of the next highest bidder, and other incidental particulars.
(2) Such procès-verbal shall be drawn up by the marshal, if the sale by auction does not take place in the building in which the

Procès-verbal of sale by auction.

court sits.

Procedure in auctions of merchandise or other property. Amended by: XV. 1913.86; VIII. 1990.3;

XXIV. 1995.169.

Persons who may not bid in auctions. Amended by:

XV. 1913.87; XXIV 1995.170; XIV. 2006.48.

Expulsion of debtor from place of sale if he hinders proceedings. Amended by:

XIV. 2006.49.

Consequences of suspension of sale for over one year. Amended by:

IX. 1886.76.

348. Repealed by: XIV. 2006.47.

349. It shall not be lawful for any judge, magistrate, registrar, co urt execut ing offi cer o r l icensed auctio neer or broker to bid , either directly or indirectly, in an auction in which he is concerned by reason of his office. Nevertheless, if any of them desires to bid, another person shall be surrogated by the competent authority in his stead.

350. The debtor shall, upon an order of the registrar or court executing officer, be expelled from the place where the auction is held , if he at temp ts to h i n d er th e p r oceedi ng s o r t o di ssuad e bidders.

351. (1) If the creditor leaves the auction suspended for more than one year, all the acts thereof shall become void.

(2) In all cases, the effects of the decree by which a sale by auct io n of i mmo vab l e pr op erty o r of r i g h t s an nex e d to su ch property is ordered, shall cease in regard to third parties on the expiration of one year from the date of the registration required under article 306, unless such registration shall have been renewed within that time, on the demand of the execution creditor.

Disposal of immovable property, etc., by debtor within a year from registration of order of sale to be null.

Amended by: IX. 1886.77;

XV. 1913.88; XXIV. 1995.171; XIV. 2006.50.

Lease of property likewise void.

Lodging of fruits collected by debtor.

352. (1) Any disposal of immovable property or of rights annexed to such property made by the debtor within a year to be reckoned from the date of the original or renewed registration of the judgment or decree by which the sale by auction of such property or rights was ordered, shall be null in regard to the person at whose suit the judgment or decree was obtained, in which case the court shall on a demand made by application proceed, after hearing the parties, to declare such transfer as null and void and to adopt such measures as it may deem necessary.

(2) In regard to such person, any lease or other disposal of the en jo yment of such pro p erty or ri ght s and any di minu t i on or restrictions of the enjoyment of such property or rights made by the debtor within the said year without the authority of the court by which the judgment or decree was delivered shall also be null.
(3) If, pending the auction proceedings, the debtor remains in possession of such property, he may be compelled to lodge into court the fruits actually collect ed or which m i ght have been collected.

353. (1) If the debtor offers for auction movable property sufficient to meet the claim of the creditor without any obstacle or dif f iculty, the auction of the im movable property or of a commercial going concern shall be suspended.

(2) The auction of the immovable property or commercial going concern stated by the creditor shall likewise be suspended, if the debtor offers other immovable property sufficient to meet the claim of the creditor without any obstacle or difficulty.

Substitution of movable for immovable property put up for sale.

Amended by: IV. 1862.10;

XIV. 2006.51.

Substitution of other immovable property for the immovable property put up for sale.

354. (1) When the judgement the execution of which is sought is a ju dg em ent gi ven b y the Co urt of Mag i st rat e s (Mal ta), it s execution, insofar as it has to be executed on immovable property or rights attached to immovable property, is to be effected by the Civil Court, First Hall.

(2) The same rule applies when a demand is made for the execution of two or more judgements, whose total joint amount, not taking int o account any expens es, exceeds the sum of eleven thousand and six hundred euro.

Execution of a judgement of the Court of Magistrates (Malta) on immovable property. Amended by:

XV. 1913.89; II. 1940.6; XXII. 1976.4; XIII. 1983.5; XII. 1985.11; VIII. 1990,3;

XXIV. 1995.172. Substituted by: XXXI. 2002.135; XIV. 2006.52.

355. (1) The debtor shall have the right to repurchase his immovable property and of a commercial going concern sold by auction provided such right is exercised within four months from th e date of registration of the act of adjudication in the Public Registry.

(2) The right of repurchase shall be exercised by the filing of a schedule of redemption, and a concurrent deposit as is provided mutatis mutandis, in Sub-title VI of Title VI of Part II of Book Second of the Civil Code.

Jus redimendi. Amended by: IX. 1886.78; IV. 1961.12;

IV. 1984.6. Substituted by:

XXIV. 1995.173. Amended by:

XIV. 2006.53.

Cap. 16.

356. (1) The time period contemplated in article 2086 of the Civil Code, in respect of property adjudicated in a judicial sale, s h all be of two years to comm e n ce t o run from the date of enrolment of the act of adjudication in the Public Registry.
(2) The said period of two years shall be reduced to four months from the date of service by a judicial act of a copy of the act of adjudication, or of a copy of the note of enrolment of the act of adjudication in the Public Registry, and this in respect only of any hypothecary or privileged creditor on whom such service is made.
(3) Where the judicial sale is of a commercial going concern that includes immovable property, the said period of two years shall be reduced to four months to commence to run from the date of enrolment of the act of adjudication in the Public Registry.
(4) Any action by the hypothecary or privileged creditor against the third party in possession of an immovable acquired by virtue of a judicial sale shall be barred if the protest mentioned in

Right of creditor to re-sell immovable property to be exercised within two years. Amended by:

IX. 1886.79; IV. 1984.7. Substituted by: XXIV. 1995.174. Amended by: XIV. 2006.54. Cap. 16.

article 2072 (1) of th e Civ il C ode , (cal ling upo n t h e deb t or to discharg e the debt and the third party i n possession either to discharge the debt or to surrender the property), is not filed within the period of two years or four months mentioned in the preceding sub-a r ticles of this article, or i f t h e credit or fails to demand judicially the sale of the immovable within six months from the filing of the protest mentioned in article 2072(1) of the Civil Code. Such action shall also be barred if the third party in possession surrenders the property and the creditor fails to start proceedings for the judicial sale within six months from the service of a copy of the note of such surrender.
(5) Notwithstanding the provisions of article 2072(2) of the Civil Code, the demand for the judicial sale of the immovable can be made at any time after the expiration of sixty days from the date of filing of the protest.
(6) The creditors whose action has been barred in terms of the provisions of this article shall not have any right against the third party in possession who had acquired the immovable as a result of the new judicial sale under the said provisions; provided that such creditors shall retain their ranking prior to sale.
(7) If before an adjudication or after an adjudication, the bidder or purchaser, as the case may be, finds that the immovable property is subject to any burdens, leases or other rights whether real or personal, which have not been included in the valuation in terms of article 310, the bidder or purchaser, as the case may be, shall have the right in the former case to demand either to withdraw his bid or to have his bid reduced, and in the latter case the purchaser shall have the right to demand the rescission of the sale.
(7A) When such action is exercised and the sale is effected, the third party which has acquired possession of the immovable thing
in who s e f a v our the p r op ert y w oul d h a v e been ori g in al ly
adjudicated, who shall not also be the same person in whose favour during the second sale the property has been adjudicated, shall be paid from the proceeds of the second sale the sum of money which
he would have defrayed together with all expenses made before any other creditor:
Provided that where the third party which has acquired po ssession of the im movable thi ng during the seco nd sale at a higher price is also the same person in whose favour the property had been originally adjudicated, such third party shall be required to deposit in court only the difference in price, and not the full price.
(8) Such demand for the rescission of the sale is to be made not later than six months from the date of the adjudication by means of an application to be served on the execution creditor and the debtor.
(9) The court shall allow the demand of the bidder or of the purchaser; as the case may be, if it is satisfied that the omission in the said valuation or in the said list was relevant so as to affect the bid made by the purchaser.

357. The adjudication of immovable property as of itself constitutes an executive title and if either the debtor against whom execution is being sought or a third party occupying the premises without title fails to v acate t h e prem ises so adj udicated, the pu r c ha ser s h al l b e en ti tl ed , w i th in fo u r m o n t hs f r o m th e adjudication, to seek the issue of a warrant of eviction on the basis of the said title of adjudication.

Eviction after adjudication. Added by: XIV. 2006.55.

Sub-title V

OF COURT APPROVED SALES FOR SHIPS, VESSELS AND AIRCRAFT

Added by: XIV. 2006.57. Amended by: XV. 2008.25; VIII. 2010.61.

358. Notwithstanding any other provision of this Code, the Court may, on the application of any creditor with an executive title, approve a private sale of a ship or vessel or aircraft, in favour of an identified buyer and in consideration of a determined price.

359. The applicant shall together with the application submit appraisem e nt s by tw o ind e pen d ent and repu tabl e v a luers confirming the value of the ship or vessel or aircraft; it shall also be

incumbent on the applicant to adduce to the Court evidence that such private sale is in the interest of all known creditors and that the price of fered by the proposed bu yer is reasonabl e in t h e
circumstances of the case.

360. No order shall be made by the Court before the application has been served on such persons as the Court, in the circumstances and upon information given by the applicant, deems it appropriate to call upon to make their submissions.

361. The Court shall appoint the application for hearing within ten days of its filing.

362. If the Court accedes to the application and approves a private sale in accordance with the provisions of this Subtitle, the Court shall in its decree of approval nominate a person who shall thereupon be entitled to transfer the ship or vessel or aircraft in accordance with the terms and conditions approved by the Court, and as if he were the registered owner thereof.

363. The person so appointed by the Court shall deposit the price in Court within seven days from the date of the completion of the sale.

364. The sale of the ship or vessel or aircraft in accordance with the provisions of this Sub-title gives the purchaser a title which is free from all privileges and encumbrances, and after the sale all claims or demands against the ship or vessel or aircraft may be enforced only against the proceeds of the sale.

Private sale of a ship, vessel or aircraft.

Added by: XIV. 2006.57.

Amended by: XV. 2008.25;

VIII. 2010.61.

Appraisements by independent and reputable valuers. Added by:

XIV. 2006.57. Amended by:

XV. 2008.25; VIII. 2010.61.

Persons called upon to make submissions. Added by:

XIV. 2006.57.

Hearing. Added by: XIV. 2006.57.

Where Court accedes to application. Added by: XIV. 2006.57. Amended by: XV. 2008.25;

VIII. 2010.61.

Deposit of price in

Court.

Added by:

XIV. 2006.57.

Title which is free from all privileges and encumbrances. Added by:

XIV. 2006.57. Amended by:

XV. 2008.25; VIII. 2010.61.

(the original articles 357 to 374, both inclusive, were repealed by Act XII of 1985)

Amended by: XIV. 2006.58.

Sub-title VI

OF THE EXECUTIVE GARNISHEE ORDER

Executive garnishee order. Amended by:

II. 1940.9.

Contents of garnishee order. Added by:

XII. 1924.3. Substituted by:

XIV. 2006.59. Amended by: XV. 2008.17.

375. Where a creditor under a judgment or any other executive title, in order to obtain the payment of a debt owing to him, desires to attach in the hands of a third party moneys or movable property due o r b e l ong ing to h i s debt or, h e may do so by mean s of a garnishee order.

376. (1) The creditor shall, in the application for the issue of a garnishee order, correctly state the name and surname of the debtor, giving other particulars concerning the debtor as may be ordered by the Minister responsible for j u stice for the purpose of the identification of the debtor by the garnishee.

(2) The order shall:
(a) state the name and surname of the debtor and other particulars included in the application for the purpose of identification of the debtor, including, where possible, the identity card number or the company registration number;
(b) state the amount or thing due;
(c) state the title under which the creditor sues out execution;
(d) enjoin the garnishee not to pay or deliver up to the debtor, or any other person, such moneys or things as may be in his hands but which belong to the debtor, under penalty of payment of damages and interest; and
(e) enjoin the garnishee to lodge, at the debtor ’s expense within nineteen days from the date of service of the warrant, through the Registrar any moneys or things belonging to the debtor, as attached by the order.
(3) The lack of any of these particulars in the garnishee order shall render the said order to be ipso jure null.

Mode of executing garnishee order. Amended by:

XXIV. 1995.175; XIV. 2006.60.

377. (1) A garnishee order is executed by the delivery of a copy thereof, by the court executing officer, to the garnishee or by such electronic means as may be pres cribed by the Minister responsible for justice.

(2) A copy of the order shall also be served on the debtor in the same way as is provided under article 187, or if he is absent from Malta, on his lawful representative.

378. A garnishee who, although being in possession of moneys or other articles, belonging to the debtor, or which are due to the debtor, which may have been attached by means of the order, and who does not effect the deposit referred to in article 376 within such time as may be laid down in the order, shall be responsible for ensuing damages and interest in favour of the creditor and the court may, upon application being made for that purpose by the creditor, issue such orders as may be required, including his personal arrest for a period not exceeding three months, in order to force him to lodge such property:

Provided that where the garnishee is a Bank, that Bank shall declare what fixed deposits or other bank books are in its possession, the property of the debtor, without having to deposit them; however the person responsible for the Bank’s management shall always remain responsible in accordance with the provisions of this article.

379. (1) In the case of attachment of moneys, the garnishee may before lodging such moneys in court retain the costs in respect of such lodgment and, in the case of attachment of other movable property, the garnishee shall ha ve a privi l eged claim over the property so lodged in respect of such costs.

(2) In all cases, the execution creditor and the debtor shall be notified of any such lodgment into court.

Declaration by garnishee. Time for such declaration. Amended by: XI. 1859.21; XV. 1913.91;

XXXI. 1934.44; XXIV. 1995.176.

Substituted by: XIV. 2006.61. Amended by:

XII. 2009.11.

Garnishee may be enjoined to deposit.

Amended by: XV. 1913.92;

XXIV. 1995.177. Substituted by: XIV. 2006.62.

380. Deleted by XIV. 2006.63.

381. (1) It shall not be lawful to issue a garnishee order upon - (a) any salary, or wages (including bonus, allowances,
overtime and other emoluments);
(b) any benefit, pension, allowance or assistance mentioned in the Social Security Act or other allowance of any person pensioned by the Government;
(c) any charitable grant or donation made by the
Government;
(d) any bequest expressly made for the purpose of maintenance, if the debtor has no other means of subsistence and the debt itself is not due in respect of maintenance;
(e) any sum due for maintenance whether awarded officio judicis, or by public deed if the debt itself is not due in respect of maintenance;
(f) moneys which have been made available to the debtor by deed of loan for the building, construction and maintenance of houses intended as a main dwelling place for the debtor;
(g) overdraft banking facilities excluding credit cards by means of which commercial going concerns run by the debtor are being operated;

Form of injunction.

Amended by:

XV. 1913.93.

Property not subject to attachment. Amended by: XI. 1859.22; XII. 1924.4; XIII. 1925.4; XX. 1929.2;

XXXVI. 1938.2; II. 1940.10;

XXI. 1969.17; XXVII. 1970.186;

XI. 1973.377; L.N. 148 of 1975; XXI. 1993.87;

XXIV. 1995.178; XXII. 2005.43; XIV. 2006.64.

Cap. 318.

(h) bank guarantees and letters of credit.
Exceptions. (2) Notwithstanding the foregoing provisions of this article, in causes for maintenance, the court may, either in the judgment or in a su bseq uen t d e cree u pon an appli c atio n to th at effect b y th e creditor suing for maintenance, where such creditor is the spouse, or a minor or an incapacitated child, or an ascendant of the debtor, order that a specified portion of the salary, allowance or bequest mentioned in sub-article (1)(a), (b) and (d) or of the salary of any person, be paid directly to the creditor; the service of any such order on the person by whom the said salary, allowance or bequest is payable shall have the same effect as a garnishee order; and the person so served shall pay directly to the creditor the portion of the salary, allowance or bequest specified in the order.

Cap. 220. (3) The provisions of article 149, 150 and 151 of the Malta Armed Forces Act shall apply in respect of the pay of an officer or man of the regular force of Malta.

Salary or wages not subject to attachment. Added by:

XXI. 1969.17. Amended by:

XIII. 1983.5; XXI. 1993.87.

Substituted by: XXIV. 1995.179. Amended by:

XIV. 2006.65;

L.N. 407 of 2007;

III. 2008.7.

Cap. 318.

382. (1) In the case of any salary, wage benefit, pension or allowance mentioned in article 381(1)(a) and (b) except for any benefit, pension, allowance or assistance mentioned in the Social Security Act, when the same exceed six hundred and ninety-eight euro and eighty one cents (698.81) per month or such amount as may from time to time be established by order made by the Minister responsible for justi ce, the issue of a ga rnishee order shall be applicable on that part in excess of the amount aforestated:
Provided that if the debtor, upon an application shows to the satisfaction of the court that he needs s u ch excess or part thereof for his maintenance or for the maintenance of his family, the court shall revoke the garnishee order with respect to the excess or such part thereof, whereupon the said order shall be deemed to be and to have been without effect to the extent to which it had been revoked:
Provided further that this article shall not apply to the pay of an officer or man of the regular force of Malta.
(2) The court may, at any time, vary the order given under sub- article (1), on a demand by application of the creditor or the debtor, if there be any change in the material circumstances of the debtor.

Garnishee order may not be extended. Substituted by: XXIV. 1995.180; XIV. 2006.66.

383. A garnishee order may not be extended and shall remain in force up to such time as it is revoked by a decree issued by the court.

Sub-title V

OF THE WARRANT OF EJECTMENT OR EXPULSION FROM

IMMOVABLE PROPERTY

Amended by: IX. 1886.83.

384. In the execution of any warrant of ejectment or expulsion of tenant s or ot her occupan ts of im m ovabl e property, the co urt executing officer shall enjoin the tenants or occupants to quit the tenement within a period of not less than four and not more than eight days; at the expiration of such period, the court executing officer shall cause the tenant or occu pant to qu it the tenement which shall be cleared of all things belonging to such tenant or occupant.

Mode of execution of warrant of ejectment or expulsion from immovable property.

Amended by: XXIV. 1995.181;

XIV. 2006.68.

Sub-title VIII

OF THE WARRANT IN FACTUM

Amended by: XIV. 2006.69.

385. (1) In the execution of a warrant in factum, the court executing officer shall proceed in such manner as ordered in the warrant.
(2) The warrant in factum shall contain the order that the party against whom the warrant is issued is to be conveyed to prison, in order to be therein kept at his own expense, until the performance of the act ordered by a judgment or until such time as the court may deem necessary to ensure such performance.
(3) The warrant may not be issued other than by an explicit order of the court to be issued on a demand made by application by the creditor.
(4) The court shall only issue the warrant if it is satisfied that the creditor does not have any other means of execution available.

Warrant in factum. Amended by:

XXIV. 1995.182.

Substituted by:

XXXI. 2002.146;

XIV. 2006.70.

386. A warrant in factum, if so required for the enforcement of any judgment and where an express order to that effect is made by the court, may be executed in any place, other than a church, and against any person, other than the ascendants of the person suing out the warrant or any minister of religion while in the exercise of his ministry.
387. (1) No warrant in factum shall be executed unless the person demanding the issue of the warrant shall have first delivered to the court executing officer a sum, to be fixed by the court, to be given, through the gaoler, to the person against whom the warrant has been issued in respect of his maint e nance fo r four days, including the day of apprehension; and the gaoler shall not take the person apprehended in custody until such deposit is made.
(2) A like sum shall be deposited in the hands of the gaoler every four days in advance and not later than twelve noon of the last day of each weekly period. Such sum shall be im mediately

Where and against whom warrant in factum may be executed.

Maintenance at the expense of person demanding issue of warrant.

Substituted by: XII. 1985.13.

Amended by: XIV. 2006.71.

delivered to the person apprehended.
(3) The court executing officer and the gaoler respectively shall give a receipt for the said deposit.

Execution of warrant in factum not to bar action for damages. Amended by:

IX. 1886.85.

Warrant in factum inadmissible for enforcing cohabitation of husband and wife.

388. (1) The execution of any warrant in factum shall not affect the right of action for damages and interest consequent upon the non-performance of the act ordered by the judgment.
(2) Saving other provisions of the law as to damages and interest or for other purposes, no warrant in fa ctum may be demanded for the purpose of compelling a husband to live with his wife or vice versa.

Added by: XIV. 2006.74. Amended by: XV. 2008.26.

Sub-title X

OF THE EXECUTIVE WARRANT OF ARREST OF SEA VESSELS

Application for the issue of a warrant. Added by:

XIV. 2006.74. Amended by:

VII. 2007.30; XV. 2008.26;

XII. 2009.12.

Court to decide about the sale or to fix time-limit for payment.

Added by: XIV. 2006.74.

Amended by: XV. 2008.26.

388C. An executive warrant of arrest of sea vessels is effected by application in terms of articles 858 and 860.

388D. (1) The court shall, when a demand is made for the issue of an executive warrant of arrest, establish whether it shall order the sale of the said arti cle or fix a time-limit within which the debtor is to pay the amount due.

(2) When the court orders such sale, it shall proceed according to the procedures laid down in the provisions relating to judicial sale by auction.
(3) When the court fixes a time limit within which the debtor is to pay, it shall order the executive warrant to be definitely in force until payment of the amount due is effected.
(4) When the said time limit passes without any effect the court shall, on a demand to be made by the interested party, order the sale to take place according to the provisions of subarticle (2).

Added by: VIII. 2010.61.

Sub-title XI

OF THE EXECUTIVE WARRANT OF ARREST OF AIRCRAFT

Application for the issue of warrant. Added by:

VIII. 2010.61.

388E. An executive warrant of arrest of aircraft is effected by application in terms of articles 865D and 865F.

388F. (1) The court shall, when a demand is made for the issue of an executive warrant of arrest, establish whether it shall order the sale of the said aircraft or fix a time-limit within which the debtor is to pay the amount due or remedy the default which in any case shall not be a term exceeding thirty calendar days from the date of the application.

(2) When the court orders such sale, it shall proceed according to the procedures laid down in the provisions relating to judicial sale by auction.
(3) When the court fixes a time limit within which the debtor is to pay, it shall order the executive warrant to be definitely in force u n ti l payment of the amoun t d u e, or t h e perfor m ance of the obligation is effected.
(4) When the said time limit passes without any effect the court shall, on a demand to be made by the interested party, order the sale to take place according to the provisions of subarticle (2).

Court to decide about the sale or to fix time-limit for payment.

Added by: VIII. 2010.61.

Sub-title XII

OF THE WARRANT IN PROCINCTU

Added by: XIV. 2006.75. Amended by: VIII. 2010.61.

388G. (1) Subject to the other provisions contained in Title VII of t his Code, th e court may on dem and o f th e party, issue su ch orders to the Registrar as it m ay deem necessary for the orders contained in the judgement to be executed:

Provided that this warrant shall not be issued except after an application has been made to this effect by the creditor and after the court is satisfied that the creditor does not have any other means of execution.
(2) There shall be clearly indicated in the application the reason for the necessity of such orders and a decree shall be given thereon a fter that the de btor has be en serve d notice thereof, to which he may file a reply within four days.

Court may issue other orders. Added by:

XIV. 2006.76. Amended by:

VIII. 2010.61.

Sub-title VII

OF THE RENDERING OF ACCOUNTS AND LIQUIDATION OF

FRUITS

Added by: IX. 1886.86.

389. (1) Any person who is bound to render an account, shall, together with such account, produce all the documents in support thereof.

(2) If any of the documents is a public deed, a reference thereto shall be sufficient.

Account to be supported by documents. Added by:

IX. 1886.86.

Contents of account. Added by: IX. 1886.86.

Payment of balance not to imply approval of account.

Added by: IX. 1886.86.

Order not subject to appeal.

390. (1) The account shall contain -

(a) a clear statement of the matter of which an account is rendered;
(b) the items of receipt;
(c) the items of expenditure;
(d) the balance still due and the things to be recovered. (2) The account shall end with a summary.

391. (1) If the receipts exceed the expenditure, the court, on the application of the interested party, shall order the payment of the balance:

Provided that this shall not be taken to be an approval of the account.
(2) No appeal shall lie from the order given on any such application and such order may be enforced after the lapse of two days from the service thereof, in the same manner and with the same means as judgments may be enforced.

Objection to account. Added by: IX. 1886.86.

Amended by: XXII. 2005.44.

Cap. 398.

392. If the party to whom an account is rendered desires to i m pu gn su ch accoun t, he shall lo dge h i s obj ection thereto specifying the items to which objection is taken, by sworn application against the opposite party:

Provided that in the case of a rendering of accounts under th e Co ndomin ium A c t , such act i on shall be taken at t h e Malt a Arbitration Centre.

Certain items may be allowed although unsupported by vouchers.

Added by: IX. 1886.86.

Reimbursement of expenses for making out account.

393. (1) Such items as cannot be or are not usually supported by v o u c hers may be al lo wed i f they ap pear to b e tr ue an d reasonable:

Provided that the party rendering the account may be c o mpelle d, where it is deeme d necess a ry, to confirm the truth thereof on oath.
(2) On the demand of the party producing the account, the court may, according to circumstances, allow him such expense as it was necessary for him to in cur for mak i ng out and ren d ering th e account.

Failure to render account within prescribed time. Added by:

IX. 1886.86. Amended by: XXI. 1934.45.

Approval of account in default of objection.

394. (1) If the party bound to render an account fails to produce such account within the prescribed time, it shall be lawful for the court to allow the party suing for the account to fix, even by oath, the amount due.

(2) If the party to whom an account is rendered makes no objection thereto as provided in article 392, it shall be lawful for t h e cou r t, o n th e dem a nd o f t h e o pposit e party, t o app r ov e the account.

395. The provisions of the preceding articles of this sub-title shall, so far as applicable, apply in cases of liquidation of fruits.

Title VIII

OF CERTAIN SPECIAL PROCEEDINGS

Liquidation of fruits.

Added by:

IX. 1886.86.

Sub-title I

OF RECONVENTION

396. In any action, it shall be lawful for the defendant to set up a counte r- claim against the plainti ff , p r ov id ed th e c lai m o f th e defendant be connected with the claim of the plaintiff as stated hereunder:

(a) if the claim of the defendant arises from the same fact or from the same contract or title giving rise to the claim of the plaintiff; or
(b) if the object of the claim of the defendant is to set-off the debt claimed by the plaintiff, or to bar in any other manner the action of the plaintiff, or to preclude its effects.

Reconvention. Amended by: XXXI. 1980.4.

Grounds for reconvention.

397. The effect of reconvention as regards procedure, is that the original and the counter-claim are dealt with in one single record and both claims are disposed of in the same action.

398. (1) The defendant who desires to set up a counter-claim s h al l set u p h i s cl ai m i n th e wr i tte n r e pl y t o the app licat io n, whether sworn or not.

(2) The counter-claim shall be set up after the defence to the original claim made out as required by law; and the defendant shall, with respect to the counter-claim, observe, as far as practicable, the rules established by this Code or by any other law for the written pleading by which the proceedings were first instituted.
(3) Where proceedings are by sworn application, the setting up of a counter-claim in a sworn reply shall be equivalent to the filing of a sworn application with respect to that claim, and shall be served on the plaintif f, who shall proceed as if he were the defendant with respect thereto; and in any such case, the closing of the preliminary written procedures and the application of articles
151 and 152 shall take place with the filing of that sworn reply by the plaintiff or the expiration of the term for its filing.

Effects of reconvention.

Form of reconvention. Substituted by: XXXI. 1980.5. Amended by: XXIV. 1995.183; XXII. 2005.45.

399. Repealed by: XXIV. 1995.184.

400. The defendant may not set up a counter-claim in a capacity other than that in which he has been sued, nor may he, in setting up the counter-claim, sue the plaintiff in a capacity other than that in

Security for costs. Amended by: XXXI. 1934.46. Substituted by: XXXI. 1980.6.

Capacity of parties in reconvention.

Discontinuance of action by plaintiff not to bar prosecution of counterclaim.

Connection of actions.

which the plaintiff has claimed.

401. If, in any case in which the defendant sets up a coun terclaim, the actio n of the plaint if f is in any m a nner discontinued, the defendant may nevertheless insist on his counter- claim lawfully set up being proceeded with.

402. Where the defendant in an action brings another action in respect of a claim connected with that of the plaintiff as provided in article 396, it shall be lawful for the court to order the two actions to be heard simultaneously.

Sub-title II

OF JACTITATION SUITS

Jactitation. Amended by: XII. 1913.94; XXII. 2005.46.

Time for bringing claim for trial. Amended by:

XI. 1859.23; XV. 1913.94;

XXIII. 1971.21.

Suspension of time.

403. Where any claim is vaunted in any judicial act, or otherwise in writing, the party wishing to be liberated from such jactitation may, within a year of such jactitation, demand, by sworn application, that a time be fixed within which the jactitator shall bring the claim for trial, and that in default thereof, the jactitator be precluded from ever proceeding on that claim.

404. (1) The time mentioned in the last preceding article shall not exceed three months.

(2) Such time shall be suspended during the pendency of an ap plicat ion to sue wi th the benef it of legal aid, p r ov ided the application is filed by the jactitator within the first four days of the said time.

When jactitation suit is inadmissible.

Jactitator to proceed before court to the jurisdiction of which the party aggrieved is subject.

Where jactitator declares before court that he has no claim against party aggrieved. Amended by:

XXII. 2005.47.

405. The court shall not allow the demand referred to in article

403 if the jactitation is in respect of an uncertain right, contingent upon any event or condition, or of a right with regard to which no
action can, for the time being, be taken.

406. Any jactitator to whom a time has been fixed within which to bring his claim for trial, shall institute proceedings before the c o u r t to th e ju r i sd ic ti on of wh ic h th e pa r t y a g g r iev e d b y t h e jactitation is subject.

407. Where the jactitator, on appearing before the court, dec l a r es, by me ans of a note , that he has no claim a g ains t the plaintiff or his property, as the case may be , according to the demand in the sworn application, the court shall not dispose of the merits, but shall only adjudge on the costs, where necessary; and in such case the said declaration of the jactitator shall have the same effect as an injunction of perpetual silence and it shall no longer be lawfu l for the jact itat o r t o pro c eed o n the cl ai m to which th e demand refers.

408. Where the fact of the jactitation is proved and no declaration as provided in the last preceding article is made, the cour t sh all allo w the jactit ator a time in accor dance with the provisions of article 404, and shall reserve giving judgment as to the issue of perpetual silence in one of the first sittings to be held after the expiration of the time allowed as aforesaid.

409. If in the course of the said time the jactitator shall ask for an extension thereof, the judgment on the issue of perpetual silence reserved as provided in the la st preceding article, shall be adjourned until the demand for the extension be dealt with, or until the enlarged time shall elapse.

410. If the jactitator shall fail to bring his claim for trial within t h e t ime fi xed , th e co ur t sh al l d i sp os e o f th e seco nd d e man d contained in the original sworn application enjoining perpetual silence upon the jactitator in respect of such claim.

411. The perpetual silence enjoined as provided in the last preceding article shall be deemed to be restricted to the jactitation to which reference was made in the sworn application.

412. If the jactitator shows that he has, within the time fixed, brought his claim for trial, the court shall abstain from disposing of the second demand contained in the original sworn application, and shall leave the qu estio n of co sts to be determ ined in the action instituted by the jactitator.

413. Where in the action instituted by the jactitator the court shall giv e ju dgment of n on-su it again st the jactitator, the tim e allowed under article 408, shall commence to run anew from the day on which the judgment of non-suit shall have become a res judicata but may not be enlarged.

414. If, within the time renewed as provided in the last preceding article, the jactitator fails to institute fresh proceedings, t h e pl ai nti f f i n t h e jactit ati on suit may d e mand , by swor n appli cat ion before the court whi ch fixed t he origin al ti me, that perpetual silence be enjoined on the jactitator in regard to the claim which he had brought for trial.

415. A jactitation suit may not be instituted against any absent person nor may any such suit be instituted or prosecuted against any minor or other person who is under any disability to sue or to be sued:

Provided that the provisions of this article shall not apply in r e lati o n to any perso n wh o wit h i n th ree mo nt h s i mmedi atel y preceding the institution of the jactitation suit shall have, either personally or through a mandatory, filed a judicial act vaunting his claim.

Fixing of time to jactitator. Amended by: XV.1913.94.

Extension of time.

Injunction of perpetual silence. Amended by: XXII. 2005.48.

Perpetual silence to apply only to jactitation referred to in a sworn application. Amended by:

XXII. 2005.49.

Where jactitator brings his claim for trial.

Amended by: XXII. 2005.50.

Effects of non-suit in action by jactitator.

Amended by: XV. 1913.94.

Effects of default by jactitator to take fresh proceedings. Amended by:

XXII. 2005.51.

Jactitation suit inadmissible against absent persons, etc. Added by:

XV. 1913.94. Amended by: XXIV. 1995.185.

Sub-title III

OF COMPETING CLAIMS

Competition of creditors on moneys deposited in court.

Amended by: VII. 1892.1;

XV. 1913.95; VIII. 1990.3. Publication of

notice. Time for creditors to put in claims.

Notice to state day appointed for trial.

Power of court to abridge time, in commercial matters.

416. (1) If, in the superior courts or in the Court of M a gistrates (Gozo) in its superi or ju ri sdi c ti on , there shall be deposited money in respect of which more than two parties allege claims of preference or priority or any other interest whatsoever, t he court, upo n th e appli cat ion of an y of such claimants, shall, through the registrar, cause a notice to be published in one or more period ical newspapers, i n clud i ng in any case the Government Gazette, stating that the said money is standing in court, that there are claims upon such money, and calling upon all parties interested therein, to put in their respective claims within the time of one month, on the expiration of which it shall not be lawful for any party faili ng to put in a claim with in that t ime, to delay or otherwise hin d er the d ecision on the competition proceedings between the parties putting in a claim.

(2) The said notice shall state the day on which, after the expiration of the said time of one month, all the parties interested who shall have put in a claim shall appear in court for the trial of the claims.
(3) In commercial matters, the time above referred to may be abrid g ed to any such shorter period as the court m a y deem adequate.

Service of notice. (4) The said notice shall be served on the persons making the deposit, the debtor, the execution creditors as well as on any other creditor at whose suit any garnishee order may have been issued.

Jus avocandi. 417. The judgment given on the claims put in by the competing creditors within the prescribed time shall not operate so as to bar the exercise of any right on the part of any person who failed to put in his claim; and it shall be lawful for such person subsequently to recover, wholly or in part, from any ranked creditor the money received by him, if th e claim of such pe rs on shall, on sepa ra te proceed i ngs, prove to be prior, or eq ual t o , that of the ranked creditor: but if it shall be proved that such person having a prior or an equal claim could have put in such claim within the prescribed time, his default may be taken into account in adjudging the costs.

Competing claimants to proceed by application. Amended by: XXIV. 1995.186.

Service of application. Amended by: XI. 1859.24; VII. 1892.2;

XXIV. 1995.187.

418. Any person desiring to compete on the money deposited in c o u r t sh al l, w i t h in th e pre s crib ed time, file an application containin g his demand to b e ran k ed on the fun d . The first competitor shall together with his application file a copy of the lodgment schedule.

419. (1) The application shall be served on the debtor and on the person making the deposit, but no answer to such application shall be allowed.

Time for trial. (2) The trial of the claims shall not take place before four days from the expiration of the time referred to in article 416.

420. (1) Upon the expiration of the time referred to in article

416, the written pleadings shall be deemed to be closed both by the filing of the respective application of each claimant.
(2) At the trial, the court shall hear each competing claimant both in support of his claim and the alleged priority or preference thereo f, as well as in o pposit ion to t h e claim s of the other competitors, and on any other matter which may be necessary for a full statement of the claims. The debtor, the person making the deposit and any other interested person appearing at the trial shall also be heard.

Closing of written pleadings. Amended by: XXIV. 1995.188.

Trial.

421. Where the court, for a further and better statement of the claims, in view of the intricacy of the issues involved, shall deem an additional written pleading to be necessary, the court may order such additional written pleading and make any other special order which it may consider expedient.

422. During the compilation of the competition proceedings, no money forming the subject-matter of such proceedings may be paid ou t wi th ou t th e con sen t of a ll t he pa rt ie s i nt er ested , u nl ess th e court, with a view to avoiding the accruing of interest to the prejudice of all the parties, or for any other good reason, shall deem it proper to satisfy the claim of any one of the competitors the priority or preference of which has not been contested.

423. Saving the provisions of articles 424, 425 and 427, if the com p eti tio n refers t o mo ney depo sited in co urt sub j ect to th e con d it ion that it may no t be with drawn wit hou t a surety, such money or any part thereof shall not be paid out under any title or for any reason whatsoever without such surety.

424. Where the payment out is demanded by a government department, or any administra tion thereof, or by any pious institution or foundation, or any other body corporate, which can offer sufficient security on immovable property, the hypothecation of such immovable property made by a person lawfully authorised for the purpose, may be allowed in lieu of the surety referred to in the last preceding article.

425. The following persons are exempt from giving surety notwithstanding that such surety be required by the person making the deposit:

(a) the dominus, where the claim is for payment of the ground-rent of the tenement on the proceeds of the sale of which there are competing claims;
(b) any seaman of any ship, where the claim is for payment of wages due for the last voyage, provided the money deposited in court is derived from the sale of such ship, or from the sale of the cargo of the said last voyage, or from the recovery of the ship or cargo, or from the freight earned in the said voyage.

Additional pleadings.

No money to be paid out without consent of parties interested or without order of court.

Withdrawal of deposit subject to condition of surety.

Hypothecary security in lieu of surety.

Exemption from surety.

426. The obligation of the surety referred to in article 423 shall remain in force -

(a) if the money deposited in court is derived from the sale

Duration of obligation of surety.

of immovable property, until such time as the right of action to which the immovable property may be subject is exercisable;
(b) if the money deposited in court is derived from the sale of any ship, for a period of one year;
(c) if the money deposited in court is derived from any other source, until such time as the person making the deposit may be liable to any molestation against which he is entitled to be secured.

When condition requiring a surety is not operative.

Competing claims on primogenitures, etc.

Filing of the application.

Amended by: XXIV. 1995:189.

Production of documents.

427. The condition of the production of a surety referred to in article 423, shall not be operative -

(a) if the money deposited in court represents the price of movable property, with the exception of ships; or
(b) in any other case, if the court is satisfied that the depositor cannot be subjected to molestation.

428. (1) In case of competing claims respecting any primogeniture, majorat, entail, succession or benefice, any person claiming to have a right thereto, an d d esirin g t o e st abl ish such right, shall file an application setting out his claim causing such application to be served on any person whom he believes to have a competing claim.

(2) The documents in support of the claim shall be produced together with the application.

Answer and respective statement. Substituted by: XXIV. 1995.190.

Service of answer and respective libel.

Closing of pleadings. Amended by: XXXI. 1934.47. Substituted by: XXIV. 1995.191.

429. It shall be lawful for each of the parties on whom any such application shall have been served to file an answer containing the please whi c h he desires to ra i s e in opp osi tion to the oth e r competing claims and a statement of his own claim.

430. The written pleading referred to in the last preceding article shall be served on all the parties who shall have put in a claim as well as on any other person whom the party filing such pleading deems it to be in his interest to notify judicially of such pleading.

431. (1) In the cases referred to in article 428, the pleadings shall be deemed to be closed -

(a) on the filing of the answers and respective applications of the contending parties; or
(b) on the expiration of the time prescribed in sub-article (2), if the parties or any of the parties served with the application shall fail to file the answer and respective application within such time.
(2) The party served with an application shall file an answer or a respectiv e appl icatio n wit h i n f i ft een days fro m t h e dat e of service.

432. There shall be no reply to the answer and respective ap plication but it sh al l be lawfu l for the par ties serv ed with an answer and respective application to file a note in support of their own claim and in opposition to the claim of the other parties not later than the day appointed for the trial of the claims.

433. Any other party claiming to have a right to the p r imogen iture, m a jorat, en tail , successio n , or benefi ce under litigation, may file his application at any time before the closing of the pleadings, causing it to be served on all parties who had put in a claim, in which case the provisi ons of the last four precedi n g articles shall apply.

434. Should a further and better statement of the claims prove to be necessary, it shall be lawful for the court to order all or any of t h e co mp et in g part ies to fi le an ad di tio nal writ ten p l eadi n g i n regard to such issues of law or fact as in the opinion of the court may require further elucidation.

435. Non-appearance, except in the case of a person served with a judicial notice, shall not debar any claimant who has not entered an appearance from exercising, by separate proceedings, any ri ght of act i on to wh ich he may b e en ti tled ag ai nst the successful party.

Parties served with answer and respective application may file a note. Amended by:

XV. 1913.96; XXXI. 1934.48; XXIV. 1995.192.

Other claimants may file application. Amended by: XXXI. 1934.49; XXIV. 1995.193.

Additional written pleadings.

Person not expressly notified not to be debarred from claiming his rights by separate proceedings.

Sub-title IV

OF UNCERTAIN OR UNKNOWN HEIRS

436. If a person dies without leaving any known heir present in Malta, the Attorney General shall take possession of the inheritance to safeguar d the i n terests of any per s on who may b e entitl ed thereto.

437. The Civil Court, First Hall, or the Court of Magistrates (Gozo) in its superior jurisdiction, as the case may be, shall, on the demand of the Attorney General, by an application, issue a warrant directing the marshal to make a description of the hereditary estate.

438. Any person claiming to have an interest in the estate, either in his own name or on behalf of any other person, may, upon an a pplication, obtain leave from the court to be present at the description.

439. In virtue of the said warrant all movable property belonging to the deceased shall be seized.

Attorney General to take possession of inheritance where no known heirs are present in Malta.

Amended by: L.N. 46 of 1965. LVIII. 1974.68.

Warrant of description. Amended by: XI. 1913.97;

L.N. 46 of 1965; LVIII. 1974.68; VIII. 1990.3; XXIV. 1995.194.

Interested parties may apply for leave to be present at description.

Seizure of movable property.

Sale by auction of perishable property, etc. Amended by:

XXXI. 1934.50; L.N. 46 of 1965;

LVIII. 1974.68.

440. (1) The Attorney General may, by an application, demand t h a t such prop erty a s h e ma y th in k pe ri sh abl e or l i a b l e to deterioration, be sold by auction.

(2) The same rule shall also apply where the hereditary estate is of very small value.

Attorney General to be lawful representative of inheritance. Amended by:

L.N. 46 of 1965; LVIII. 1974.68.

Estate not to be disposed of without order of court.

Duties of Attorney General where inheritance is of considerable value. Amended by:

L.N. 46 of 1965; LVIII. 1974.68;

VIII. 1990.3; XXIV. 1995.195.

Placing of person in possession of estate.

Security.

441. The Attorney General shall be the lawful representative of the inheritance whether as plaintiff or defendant.

442. It shall not be lawful to dispose of the hereditary estate or any part thereof without an order of the court.

443. (1) The Attorney General vested with the possession of the hereditary estate shall, by means of a notice in the Gazette and in a daily newspaper, call upon all parties who may have a claim on such estate, to bring forward their claim before the competent court within a period of one year.

(2) It shall not be lawful for the court to put any person in possession of the inheritance before the expiration of the said time, unless such person shall give a bond with a sufficient surety to restore such inheritance to any other person having a better claim who may appear within the said time.

Persons exempted from giving security.

Amended by: XLVI. 1973.108.

444. (1) The following persons are exempted from giving the security referred to in the last preceding article:

(a) the heir institute;
(b) the legitimate children of the deceased;
(c) the parent or the brother or sister of the deceased, provided such parent, brother or sister shall state on oath before the respective court, that it is to his knowledge that the deceased had no legitimate children.

Power of court. (2) In such cases it shall be lawful for the court to allow the heir institute or the child, parent, brother or sister of the deceased to take possession of the entire inheritance, under an obligation on his or her part to surrender such portion as may be due to any other heir institute, child, parent, brother or sister of the deceased.

Delivery of estate to creditor. Amended by:

XI. 1859.25;

L.N. 46 of 1965;

LVIII. 1974.68.

Verification of account on oath.

445. (1) Where the hereditary estate is of very small value, it shall be lawful for the court, in the absence of any opposition on the part of the Attorney General, to order, even on an application, that such estate be delivered to any creditor claiming it in fall or partial payment of a debt owing to him.

(2) In any such case, the court may allow the creditor to verify hi s account on oath if, in the circum stances of the case, it i s difficult to produce other evidence and the court is satisfied that
such verification on oath is sufficient.

446. In the case referred to in the last preceding article, the delivery of the estate to a creditor in full or partial payment of a debt owing to him, may also be made, without any order of the court and without any application on the part of the creditor, upon a note to that effect filed by the Attorney General, where the debt is proved by documentary evidence.

447. The Attorney General may, at the expiration of one year from the day on which he was vested with the possession of the hereditary estate, o b tain an or der fr om the cour t fo r the entir e property of the deceased to be sold by auction, in which case the proceeds of the sale, a f ter de ducting there f rom the expenses i n curred, shall be deposited in cou r t fo r th e b e n e fi t of the inheritance.

Summary procedure for delivery of estate to creditor where claim is proved by documentary evidence.

Amended by: XI. 1859.25;

L.N. 46 of 1965;

LVIII. 1974.68.

Sale by auction of estate and deposit of proceeds in court.

Amended by: L.N. 46 of 1965;

LVIII. 1974.68.

Sub-title V

OF DISENTAIL

448. Saving the provisions of Title I of Part II of Book Second of this Code, the demand for a disentail, in the cases permitted by law, i s m a d e by an application t o the competent cou r t of contentious jurisdiction.

449. The application shall state the nature of the entail to which the immovable property is subject, as well as the object for which the disentail is demanded.

450. The application shall be accompanied by documents in support of its contents and by security for costs.

451. Where any such application is made, the court shall, upon a separate demand by the applicant, or upon the demand which shall have been made for the purpose in the application itself, issue banns for the appointment of a curator or curators.

452. The registrar shall simultaneously with the issue of banns cause a not ice t o b e pu bl ished in on e or m o re perio d ical new s pa pers, in cl ud in g in any c a se th e Go vern m e nt Gaze tt e, announcing that an application for the disentail has been filed, and call ing upon any in terested party who may desire to en ter an opposition to such application to file, within one month or within such shorter time as the court in some particular case sees fit to prescribe, an answer containing the grounds of his objection to the said application.

453. Moreover, the application shall be expressly served on the curator or curators appointed as aforesaid and on the parties next entitled to succeed to the entail, being present in Malta and known to the applicant.

Procedure for disentail.

Contents of application.

Production of documents and security for costs.

Issue of banns for appointment of curators.

Publication of notice in newspapers announcing application for disentail.

Service of application.

Answer by curators, etc.

No written reply allowed.

Closing of written pleadings.

Appointment of day for hearing of application.

Effect of judgment ordering the disentail.

Power of court to order cessation of effects of disentail.

454. After the application has been duly served, the curator or curators and the other parties on whom the application has been express l y served as well as an y ot her perso n cl aim i n g t o be interested in the matter, shall be entitled to file an answer.

455. No written reply to such answer shall be allowed.

456. The written pleadings shall be deemed to be closed on the expiration of the time referred to in article 452, although no answer shall have been filed.

457. The court shall not appoint a day for the hearing of the application before the time fixed in the notice referred to in article

452 has expired.
458. The judgment ordering the disentail shall, as soon as it becomes a res judicata, have the effect of freeing the immovable property from any entail to which the same may have been subject.

459. (1) It shall be lawful for the court, at any time before the a l i e na ti on of s u ch p r op erty, up on th e d e m a n d o f an y pe rs on interested, to order the cessation of the effects of the disentail if, owing to supervening circumstances, t h e o b ject for whi c h th e disentail was granted shall have ceased to exist.

(2) In the absence of any such order or of a demand for such order, the alienation may not be impugned on the ground that it was ma de after the object for whic h the d i sentail was granted had ceased to exist.

Sub-title VI

Substituted by: L.N. 148 of 1975.

OF CAUSES OF THE GOVERNMENT

Proceedings against the Government. Added by: VIII. 1981.6. Amended by:

XXIV. 1995.196; XXXI. 2002.149.

460. (1) Subject to the provisions of sub-article (2), no judicial act commencing any proceedings may be filed, and no proceedings may be t a k e n or in st itu ted, an d no warrant may be demanded, against the Government, or against any authority established by the Constitution, other than the Electoral Commission, or against any person holding a public office in his official capacity, except after the expiration of ten days from the service against the Government or such authority or person as aforesaid, of a judicial letter or of a protest in which the right claimed or the demand sought is clearly stated.
(2) The provisions of sub-article (1) shall not apply -
(a) to actions for redress under article 46 of the
Constitution; or
(b) to warrants of prohibitory injunction; or
(c) to actions for the correction of acts of civil status; or
(d) to actions to be heard with urgency; (e) to referrals of disputes to arbitration,
and where in accordance with the provisions of any law a particular procedure including a time-limit or other term is to be observed, the provisions of sub-article (1) shall not apply and the procedure aforesaid, including any time-limit or other term, shall apply and be observed in lieu thereof.
(3) Causes against the Government in respect of which there is in force a warrant of prohibitory injunction shall be heard by the court with urgency in preference to other causes.
461. For the recovery of any fine (multa) recoverable by civil process, the Attorney General shall proceed in the Civil Court, First Ha ll , or i n t h e C o urt of Ma gi st rat e s (Go z o) in i t s su p e ri or jurisdiction, as the case may be, by application.

462. In the case of seizure of goods subject to forfeiture by civil p r ocess according to law, th e At torney Gen e ral sh all l i kewise proceed in the Civil Court, First Hall, or in the Court of Magistrates (Gozo) in its superior jurisdiction by application demanding that the goods in question be declared forfeited.

463. The application referred to in the last preceding article shall be directed against the person in whose possession the goods shall have been found.

464. (1) Where the goods were not in the possession of any person, the application shall be directed against the advocate and the legal procurator next in turn as curators on the rota.

(2) Such curators shall represent the unknown owner of the goods.
(3) A copy of such application shall be posted up at the entrance of the building in which the court sits, at least two days before the day appointed for the hearing.

Proceedings for recovery of fine (multa) by civil process. Amended by: XV. 1913.97;

L.N. 46 of 1965; LVIII. 1974.68;

VIII. 1990.3; XXIV. 1995.197;

XXII. 2005.52.

Proceedings for forfeiture of goods by civil process. Amended by:

XV. 1913.97; L.N. 46 of 1965;

LVIII. 1974.68; VIII. 1990.3; XXIV. 1995.198;

XXII. 2005.53.

Person against whom application is to be directed. Amended by: XXII. 2005.54.

When application is to be directed against official curators.

Amended by: XXXI. 1934.51;

XXII. 2005.55.

Curators to represent unknown owner.

Posting up of copy of application.

465. It shall be lawful for any person interested, although not summo ned , to app e ar at th e t r ial of the acti on, and ent e r his objections against the demand referred to in article 462.

466. (1) Where a head of any government department or the Chairman of Enemalta Corporation or his representative desires to su e for the recovery of a debt due t o a d e p a rt men t u nder h i s direction, or to any administra t ion t h ereof, for any servi c es, supplies, rent or for any licence or other fee or tax due, he may m a ke a d e c l a r a t i o n o n oa th be fo re th e reg i s t rar, a j u d g e or a magistrate wherein he is to state the nature of the debt and the name of the debtor and confirm that it is due.

Any interested person may appear at the trial to contest action.

Proceedings for debts due to Government. Amended by: XV. 1913.98. Substituted by:

XXIV. 1995.199. Amended by:

XXII. 2005.56.

(2) The declaration referred to in sub-article (1) shall be served upon the debtor by means of a judicial act and it shall have the same effect as a final judgment of the competent court unless the debtor shall, within a period of twenty days from service upon him of the said declaration oppose the claim by filing an application demanding that the court declare the claim unfounded.
(3) The application filed in terms of sub-article (2) shall be served upon the head of department, who shall be entitled to file a reply within a period of twenty days. The court shall appoint the application for hearing on a date after the lapse of that period.
(4) In the cases of an urgent nature the court may, upon an application of the creditor or the debtor, shorten any time limits provided for in this article by means of a decree to be served upon the other party.

Opposition to proceedings under article 466. Amended by:

XV. 1913.99,100; VIII. 1990.3. Substituted by: XXIV. 1995.200. Amended by: XXII. 2005.57.

467. (1) Any executive title obtained according to the provisi ons of th e last precedi ng article in the absen c e of any opposition on the part of the debtor shall be rescinded if upon a request by application to be filed by the debtor within twenty days from the first service upon him of any executive warrant based on the said title or of any other judicial act wherein reference is made to the said title, the court is satisfied that the debtor was unaware of the service of the declaration referred to in sub-article (1) of the last preceding article during th e period during which he could oppose the same and that the claim contained in the said declaration is unfounded on the merits.

(2) No opposition other than that specifically provided for in this article and in the last preceding article shall stay the issue or execution of any executive act obtained thereunder or the paying out of the proceeds of any warrant or sale by auction carried out in pursuance thereof.

Inadmissibility of opposition against execution or payment of proceeds.

Government costs.

Amended by:

XVI. 1922.3;

XXXI. 1966.2;

L.N. 148 of 1975.

468. Repealed by: XXIV. 1995.200.

469. Any taxed fees due to the law officers of the Government of Malta shall be paid into the Consolidated Fund.

Added by:

XXIV. 1995.201.

Sub-Title VII

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Judicial review of administrative action.

Added by:

XXIV. 1995.201.

Amended by:

IV. 1996.8.

469A. (1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

(a) where the administrative act is in violation of the
Constitution;
(b) when the administrative act is ultra vires on any of the following grounds:
(i) when such act emanates from a public authority that is not authorised to perform it; or
(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or
(iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or
(iv) when the administrative act is otherwise contrary to law.
(2) In this article -
"administrative act" includes the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended fo r internal or ganizati on or admini s tratio n with in th e sai d authority:
Provided that, saving those cases where the law prescribes a peri od wi thi n w h ich a p ubl ic auth ori t y is requ ired t o m a ke a decision, the absence of a decision of a public authority following a claimant’s written demand served upon it, shall, after two months from such se rvice, cons titute a refusal for the purposes of this definition;
"public authority" means the Government of Malta, including its Min i stries and department s, lo cal aut hor iti es and any bod y corporate established by law.
(3) An action to impugn an administrative act under sub-article (1)(b) shall be filed within a period of six months from the date when the interested person becomes aware or could have become aware of such an administrative act, whichever is the earlier.
(4) The provisions of this article shall not apply where the mode of contestation or of obtaining redress, with respect to any particular administrative act before a court or tribunal is provided for in any other law.
(5) In any action brought under this article, it shall be lawful for the plaintiff to include in the demands a request for the payment o f damag e s based on t h e all e g e d respo n si bi li ty o f th e pu bl ic authority in tort or quasi tort, arising out of the administrative act. The said d a m a ges shall not be award e d by th e cou r t wh ere notwithstanding the annulment of the administrative act the public authority has not acted in bad faith or unreasonably or where the thing requested by the plaintiff could have lawfully and reasonably been refused under any other power.
(6) For the purposes of this article, and of any other provision
of this and any other law, service with the government is a special relationship reg u lat e d b y th e legal provisions specifically applicabl e to it and the terms and conditions from time to time established by the Government, and no law or provision thereof relating to conditions of employment or to contracts of service or of employment applies, or ever heretofore applied, to service with the government except to the extent that such law provides otherwise.

Amended by: IX. 2004.11.

PART II

OF THE MODE OF PROCEDURE BEFORE THE

COURT OF VOLUNTARY JURISDICTION

GENERAL PROVISIONS

Procedure in matters of voluntary jurisdiction. Amended by: XV. 1983.4; XXI. 1993.87. Substituted by:

XXXI. 2002.150.

470. (1) Saving the provisions of article 489 of this Code and of article 37 of the Civil Code, any demand for any authorization or leave to enter into or make any contract or disposition in respect of which the law requires a previous authorization or leave, or for any other order or direction in civil matters of voluntary jurisdiction, shall be made to a section of the Civil Court as may be prescribed by regulations.
(2) Such application shall be signed by the applicant himself or by an advocate, notary, or legal procurator.

Powers of judge.

Amended by:

IV. 1868.5.

Court may, in certain cases, order the production of an opinion in writing of an advocate.

Judge may examine any person on subject- matter of application. Amended by:

IV. 1868.6.

Collection of information. Amended by: IV. 1868.6.

Any person may spontaneously appear to give information. Amended by:

IV. 1868.6.

471. Upon any such application the judge shall obtain the necessary in formation, and for suc h pu rpo se he sh al l ord er t he production o f docu m ents, examine, o n oat h or oth e rwise, th e applicant him self or any other pe rson, and also, if he deems it material to ascertain the value of the property forming the subject- matter of the application, appoint one or more experts.

472. If the matter refers to any waiver, compromise or security, or to an authorization to begin a suit, it shall be lawful for the court to order the applicant to produce a reasoned opinion in writing of one or more practising advocates.

473. It shall be lawful for the court to order any person to appear on a given day, at a stated time, to be exami n ed on the subject-matter of the application.

474. It shall also be lawful for the court to appoint one or more persons to collect the necessary information on the subject-matter of the application.

475. It shall be lawful for any person spontaneously to appear to give to the court the said information.

476. Any act done in pursuance of an authorization granted by th e co ur t shal l be wi thi n th e t er ms of the decree; and if afte r a decree is given, it shall be found necessary to add any new st ip ul atio n, or ag reem en t, or any o t h e r m a t t er requ ir in g authorization, another application shall be made for the necessary authorization.

477. An act done in pursuance of a decree of the said court shall no t be v a li d as re gard s su ch p a rts thereof as require judic i al authorization, except in so far as such parts have been authorized.

478. (1) Where at the execution of any act, the presence of the j u d g e of th e sai d co ur t is requ ired b y law, he shal l at ten d personally:

Provided that the presentation or withdrawal of a secret will may be effected in the presence of any other judge, notwithstanding that such judge may not be the judge assigned to the said court.
(2) The presence of the judge at the execution of an act shall not cure any defect arising from any departure from the express terms of the decree of authorisation, nor shall it validate such part of the act as requires authorization if such authorization has not been granted by a decree of the court.
(3) It shall be lawful for the judge to depute a judicial assistant to be present at the execution of the act. It shall also be lawful for the judge to depute a judicial assistant to receive the information referred to in article 471, or any sworn declaration mentioned in this Part, if the person to be examined or heard, or the deponent, is prevented by illness from attending in court or in such other place as may have been appointed by the judge.

Act to be within terms of decree.

Act to be valid only as far as authorized.

Presence of judge at execution of acts Amended by:

X. 1856.6;

XV. 1913.101;

L.N. 148 of 1975;

XXXI. 2002.151.

will not validate defects.

Judge may depute judicial assistant.

479. Decrees are issued in the name of the court, and shall be signed by the judge and countersigned by the registrar.

480. Repealed by: XXXI. 2002.152.

481. Repealed by: XXIV. 1995.202.

481A. Repealed by: XXXI. 2002.152.

482. (1) The court may, and in the case of adoption proceedings sh all, proceed with closed doors in examining and determining applications.

(2) In the case of adoption proceedings, every application, decree and record connected therewith shall be secret and shall not be accessible to any person except by authorisation of the court.

Decrees.

Hearing of application for provisional maintenance etc. Added by:

XV. 1983.5. Amended by:

XXI. 1993.87.

Mode of service.

Added by:

XV. 1983.5.

Substituted by:

XIII. 1985.7.

Review of maintenance decree. Added by: XIII. 1985.7.

Examination of applications with closed doors. Substituted by: XXI. 1962.20.

Service of application on interested third parties.

Default of answer by third party.

Opposition to demand. Amended by: XV. 1983.6.

483. If it shall appear from the contents of the application, or from the examination, or from the information obtained, that any third party is inte rested in the matt er, th e court shall order the app lication to be ser v ed o n such in terested par t y t o who m a reasonable time shall be allowed to file an answer.

484. If the party so served shall fail to file an answer within the prescribed time, the court shall dispose of the matter according to law.

485. If any person enters an opposition to the demand, the court shall examine the grounds of opposition, and shall either grant the order applied for, or refer the parties to the court of contentious jurisdiction, as it shall deem proper:

Provided that the court shall not refer the parties to the court of contentious jurisdiction where, in the case of a demand made in accordance with the proviso to article 470(1), the court shall have upheld the opposition to the said demand.

Custody of applications and decrees. Amended by:

XV. 1913.102; XXXI. 2002.153.

Decree authorizing deed to state name of notary.

Copies to be countersigned by judge.

Indexes of applications and decrees.

Cognizance of matters of voluntary jurisdiction not to be ground for challenge or abstention of judge.

Grounds for impugning acts executed by leave or with authorization of court.

486. (1) Every application and every decree shall be kept in the Registry.

(2) A decree authorizing the execution of any deed shall state the na me of the notary before and by whom such deed is to be received and published.
(3) Any copy of a decree to be inserted in any notarial act shall be countersigned by the judge.
(4) Regular indexes shall be kept of all applications and decrees.

487. The judge who shall have granted or refused the leave or auth or izati on app lied fo r, o r wh o sh all hav e ot herw ise t a ken cognizance of any matter of voluntary jurisdiction, may not on such ground be challenged or precluded from taking cognizance of any cause in any of the courts of contentious jurisdiction in which any issue relating to such matter may afterwards arise.

488. (1) In regard to any act executed by leave or with the authorization of the court, it shall not be lawful to adduce evidence to prove that the consent was gi ven by error, or ex torted by violence or fraud, or that the act was in any manner whatsoever injurious or prejudicial.

(2) Nevertheless any such act may be invalidated, if it is proved th at the leave or author ity o f the cou r t was gran ted in consequence of any misstatement or concealment of facts.

489. The provisions of this Part of this Code relating to the Voluntary Jurisdiction section of the Civil Court, and to the judge thereof shall also apply to the Court of Magistrates (Gozo) as a court of voluntary jurisdiction, constituted under the provisions of article 54, and to the magistrate sitting in such court.

Title I

OF DISENTAIL BY DECREE OF COURT OF

VOLUNTARY JURISDICTION

490. Notwithstanding any other provision of this Code relating to disentail, any person in possession of property subject to entail may, upon an application to that effect, obtain a disentail, in regard to al l o r an y p a rt of such pro p erty, by a decree of the court of voluntary jurisdiction, provided -

(a) the entail be dividual; and
(b) the fruits of all the property possessed by the applicant under the entail to which the application refers, do not, after deducting all burdens, exceed the sum of ninety- three euro and seventeen cents (93.17) per annum; and
(c) the consent of all the parties next entitled to succeed to the entail be obtained:
Provided that if at the time of the application there be only one person next entitled to succeed, then, besides the consent of such person, it shall also be necessary to obtain the consent of any other person who, in the event of the predecease of the former, would be the person or one of the persons next entitled to succeed.

Applicability of provisions of this Part to court of Gozo as court of voluntary jurisdiction. Amended by:

X. 1856.7; VIII. 1990.3.

Substituted by: XXXI. 2002.154.

Added under the Statute Law Revision Ordinance 1936,

incorporating ss. 1 to 8 of Ord. II of

1868.

Disentail where fruits do not exceed ninety- three euro and seventeen cents (93.17) per annum.

Added by: II. 1868.1.

Amended by: XIII. 1983.5;

L.N. 407 of 2007.

491. Where any of the persons whose consent is required as provided in the last preceding article, is a minor or is insane or interdicted, it shall, nevertheless, be lawful for the court to order th e disentail if it is satisfied of the necessit y or utility of such disentail in the interest also of such person.

492. Where the fruits of all the property possessed by the applicant under the entail to which the application refers, do not, after deducting all burdens, exceed the sum of thirty-four euro and ninety-four cents (34.94) per annum , t h e c our t ma y o r d e r th e disentail independently of the consent of any of the persons entitled to succeed.

Where person whose consent is required is a minor, etc.

Added by: II. 1868.2.

Where fruits of all the property under entail do not exceed thirty-four euro and ninety- four cents (34.94) per annum.

Added by: II. 1868.3. Amended by: XIII. 1983.5;

L.N. 407 of 2007.

Where fruits of tenement do not exceed nine euro and thirty-two cents (9.32) per annum.

Added by: II. 1868.3. Amended by: VI. 1895.19; XIII. 1983.5;

L.N. 407 of 2007.

Anterior dividual entail.

Added by: II. 1868.4.

Anterior individual entail.

493. Where the fruits of any tenement possessed by the applicant under the entail, whether dividual or individual, to which the application refers, do not, after deducting all burdens, exceed the sum of nine euro and thirty-two cents (9.32) per annum, the court may likewise order the disentail independently of the consent of any of the persons entitled to succeed.

494. (1) A decree ordering a disentail shall free the property from any other anterior dividual entail to which the property may be subject although no mention of such other entail shall have been made in the application.

(2) Such decree shall also free the property from any other anterior individual entail, if forty years shall have elapsed from the day of the death of the entailer, where the entail mentioned in the application was constituted by a will, or from the date of the deed where such entail was constituted by a deed inter vivos.

Substitution.

Added by:

II. 1868.5.

Amended by:

XIII. 1983.5;

L.N. 407 of 2007.

495. (1) The provisions of the foregoing articles shall also ap ply wh ere the dem and cont ained in t he ap pli catio n i s fo r the substi tut i on of so me immov a b l e pro p erty for oth e r pro p erty, whether movable or immovable, subject to a dividual entail.

(2) In such case, the substitution may be authorized by a decree of the said court, even though the fruits of the property in regard to which the disentail is demanded, exceed the sum of ninety-three euro and seventeen cents (93.17) per annum.

Letting out of property subject to entail.

Added by: II. 1868.6.

496. It shall also be lawful for the said court to grant to any person in possession of property of any value whatsoever, subject to any di vidual or individual entail, authorization to gi ve such property on lease for any period exceeding eight years, in the case of rural property, or four years, in the case of urban property, if it is shown to the satisfaction of the court that such lease would be for the benefit of the persons entitled to succeed:

Provided that the court may not grant any such authorization for a period exceeding twelve years, in the case of rural property, or eight years, in the case of urban property.

Letting out of property subject to entail on emphyteusis. Added by:

II. 1868.7. Amended by:

VI. 1895.18.

497. (1) It shall also be lawful for the said court to grant to any person in possession of property of any value whatsoever, subject to any di vidual or individual entail, authorization to gi ve such property on em phyteusis for a definite period or in perpetuity, provided the persons whose co nse n t would, according to the provisions of article 490, be necessary for a disentail, give their consent thereto.

(2) The provisions of article 491 shall also apply in the case referred to in this article.

Where person refuses consent. Added by:

II. 1868.8.

498. Where any person whose consent is required under the provisions of the foregoing articles fails, without just cause, to give such consent and thereby causes recourse to be had to the court of

su ch co urt shall , in g ran ting to th e appl icant that wh ich, in th e event of such consent, he could have obtained from the court of voluntary jurisdiction, condemn such person in the costs of the action.
Title II

OF THE DISENCUMBERMENT OF IMMOVABLE PROPERTY BY THE PROCEDURE OF EDICTS

499. The liberation of any immovable property from any entail, hypothec, easement or other burden whatsoever, may be obtained by means of edicts issued by the Court of voluntary jurisdiction.

500. (1) The demand for the issue of edicts shall be made by an application.

(2) The application shall state the mode in which the property has been acquired as well as every transmission of the possession thereof which may have taken place within the last preceding ten years.
(3) The applicant shall, together with the application, or subsequently thereto, file a list of his hypothecary debts, showing distinctly the sums due by him, the name of the creditors and their respective t itles, as w e ll as the burd e n s and any other encum brances to which the imm ovable is subject; and such list shall be by him verified on oath before the registrar.
(4) The applicant shall also produce a certificate from the of fice of the Public Registry, showing the liab ilities, if any, registered against him as well as against such others as were vested with the possession of the property during the last preceding ten years.
(5) In default of the production of such certificate, it shall not be lawful to order the issue of edicts.
(6) If the applicant declares that the property is not subject to any debt or other burden, he shall confirm such declaration on oath.
(7) Where the application is made by an attorney or other representative of a person not residing in Malta, or incapable of taking an oath, the oath prescribed under this article shall be taken by such attorney or representative, who will declare that it is not to his knowledge whether the property in question is subject to any debt or other burden, or whether the property is subject to any other debt or burden besides those mentioned in the said list.

Issue of edicts. Amended by: IX. 2004.11.

Application. Amended by: X. 1856.8;

IX. 1886.87.

Contents of application.

List of hypothecary debts.

Certificate of

Public Registry.

Default of production of certificate.

Where applicant declares that property is not subject to debts.

Where application is made by attorney or representative.

Court to issue two edicts with interval of fifteen days. Amended by:

X. 1856.9;

XXIV. 1995.203.

Posting up of copy of edict.

Interested parties

to claim by protest.

Time.

501. (1) The court shall issue two edicts with an interval of at least fifteen days between the first and the second edict.

(2) A copy of each edict shall be posted up at the entrance of the building in which the court sits.
(3) Such edicts shall call upon any person interested to appear an d pu t in hi s clai m b y a pro t est wi th in two mon t h s fr om th e expiration of the time of fifteen days from the date of issue of the second edict; pr ovided that any curator appo inted by the court according to the provisions of article 504(1) may by application r equ est the court to extend the said tim e. Th e cour t may, after considering the circumstances of the case, grant such other time as it may deem fit.

Contents of edicts. (4) The edicts shall contain a warning to the effect that at the expiration of the said time of two months, the pro p er ty shall become free from any entail, hypothec, easement or other burden as regards any person who fails to appear, unless such person has been mentioned in the list referred to in the last preceding article.

Notice by registrar. Contents of notice. Amended by:

X. 1856.9; IV. 1868.7.

Where notice is to contain names of creditors.

502. (1) The registrar shall, within fifteen days from the issue of the second edict, cause a notice, signed by him, containing the demand for the issue of edicts together with an intimation in terms of su b-articles (3) and (4) of the last precedin g article, to b e published in the Government Gazette, and posted up in the place in w hic h G ove rn men t Not ices or ot her o ffici al a cts are o rd in ari ly po sted u p in t h e ci ty, sub u rb o r distri ct in whi ch the applicant res i de s, as w e l l a s in th e cit y, s u b u rb or d i s t ri ct in whi c h th e property is situate.

(2) Where, in regard to any liability shown on the certificate of the Public Registry, the applicant, if he appears in his own name, shall swear that such liability does not concern him and that he is not aware whether such liability concerns any of the persons vested with the possession of the property within the last preceding ten years, or, if he appears as attorney or representative of another person as provided in article 500(7), shall swear that it is not to his knowledge whether such liability affects the property, then in any such case, the said notice shall contain the names, as stated in the certificate, of the credito rs i n whose favou r su ch l i abi lity is registered and shall contain an express warning to such creditors that, should they fail to appear and put in a claim, by a protest, within the time prescribed in sub-article (3) of the last preceding article, such liability shall be deemed to be non-existent in so far as the property referred to in the notice is concerned.

Posting up of notice. Amended by: IV. 1868.8.

503. (1) If the applicant does not reside in Malta, the said notice shall be posted up in the place in Malta wherein it is proved to the satisfaction of the court that he has resided within the last ten years; and failing such proof, the said notice shall be posted up only in the place within the limits of which the property is situate.

(2) Nevertheless it shall in all cases be lawful for the court to
order that the said notice be also posted up in any other place.

504. (1) The court shall appoint curators to represent any interested parties who are absent or minors or pupils having no tutor or curator or other lawful representative.

(2) It shall be the duty of the curators so appointed to make due inquiry as to the rights of the parties whom they represent, as well as to ascertain in the best possible manner whether the property is subject to any entail.

Appointment of curators.

Duties of curators.

505. The curators so appointed shall make a written report to t h e court, stating therein the inquiri es made by them for the purposes mentioned in the last pr eceding ar ticle; and if it shall come to their knowledge that the parties whom they represent have any claim whatever on the property, they shall bring forward such claim by entering the requisite protest.

506. The application, the certificate of the Public Registry, the list as verified on oath, the two edicts together with the certificate of the marshal with regard to their publication, the notice inserted in the Gov er n ment G azette, the documents, the prot ests of t h e interested parties who have entered an appearance and the report as well as the claims put in by the curators appointed as aforesaid, shall be compiled in a single record in chronological order and kept in their original.

507. On the expiration of the time mentioned in article 501(3), the court shall examine the record, and if it is satisfied that the provisions contained in articles 499 to 506 inclusive have been complied with, shall give a decree declaring that the edicts have been purified, that it is proved that all the formalities prescribed by this Code have been compli ed with, and that the i mmo vab l e property is free from any enta il, hypothec, eas ement or other burden, which might be claimed by any person, or body corporate, although privileged, including the Government, except such as are available to the creditors or other interested parties who put in a claim, or whose claim appears from the certificate of the Public Registry, or from the list filed by the applicant, or from the protest of the curators.

508. (1) Any hypothec remaining in force as provided in the last preceding article shall subsist only for a period of one year to be reckoned from the day on which the debtor, who has disposed of the property, shall have, by protest or judicial letter, called upon the creditor to exercise his rights.

(2) If at the time of any such intimation, the rights of the creditor ca nnot as yet be exe r ci sed, the said period shall be suspended until such time as such rights can be exercised.
(3) The said period shall also be suspended, where the time for payment has been agreed upon in favour of the creditor.

Written report by curators.

Compilation of record.

Decree of court.

Time for which hypothecs remaining in force as provided in article 507 shall subsist.

Amended by: XI. 1859.26.

Suspension of time.

Issue of edicts in pursuance of condition attached to bid in judicial auction.

Curators to investigate history of title to property. Amended by:

X. 1856.9.

Extension of original time of two months. Amended by: XXIV. 1995.204.

509. Where the demand for the issue of edicts is made in consequence of a bid made in a judicial sale by auction subject to the condition of the issue of edicts, the purchaser shall, together with the application, file a copy of the act of adjudication; and in such case the list mentioned in article 500 shall be made by the purchaser himself, unless he states on oath before the court that he is not acquainted with the circumstances required to be mentioned in the list.

510. The curators appointed by the court under the provisions of article 504, shall use all due diligence to ascertain the history of the title to the property, and shall make an express mention thereof in their report. If the history of the title to the property is established by the curators, the court shall cause another edict to be published in the manner prescribed in article 501.

511. If the publication of the history of the title to the property as provided in the last preceding article, takes place during the second of the two months prescribed in the edicts, or during the extension of the period granted in terms of article 501(3), such time of two months or such extension of the period shall be extended by another month.

Application for the appointment of tutors, curators,

etc.

Amended by:

XLVI. 1973.108;

IX. 2004.11.

Appointment of experts for examination of accounts,

for fixing maintenance allowances.

Power of court to exempt tutors, etc. from continuing to act,

Amended by: XLVI. 1973.108.

or to suspend such tutors, etc. Amended by:

XLVI. 1973.108.

Title III

OF THE APPOINTMENT OF TUTORS, CURATORS AND OTHER ADMINISTRATORS

512. Any person may apply to the Court of voluntary jurisdiction, for the appointment of a tutor or curator to a minor, or for the appointment of a curator to a vacant inheritance or to an absent person, or of any other administrator, according to law.

513. Upon the application of tutors, curators or other administrators for the examination and approval of their accounts and for their discharge, it shall be lawful for the court to appoint advocates and accountants from the rota, who shall file a report upon which the court shall give the requisite decree.

514. Where it shall be necessary to fix a maintenance allowance, it shall be lawful for the court to appoint a practising advocate or a head of a family, in order to report thereon, and on any such report, the court shall give the requisite decree.

515. It shall be lawful for the court, on good cause being shown, to exempt any tutor, curator, or other administrator, appointed by the court, from continuing to act as tutor, curator, or administrator.

516. It shall likewise be lawful for the court, of its own motion or upon the demand of any person, to suspend from the exercise of his office, any tutor, curator or other administrator appointed by the co urt, pe ndi ng an actio n for h i s rem oval , or for an y o t her j u st cause, and to appoint another tutor, curator or administrator to act

in his stead.

517. The suspension shall continue until it is revoked by the court which issued the relative order, or until, upon proceedings taken by the tutor, curator, or administrator so suspended, against the part y who demanded t h e su spension , i t is revok ed by t h e competent court of contentious jurisdiction.

518. Applications for the substitution of any executor, administrator, procurator, or counsellor, for that appointed under a will or other instrument, where the latter refuses to accept office, or di es, or o t herw ise b eco m es un abl e to perform th e du ti es of hi s of fi ce, shall lik ewi s e be m a de to t h e Court of vo luntary jurisdiction, unless according to law such substitution is to be made by any other authority or person.

519. (1) Where no positive refusal or incapacity to perform the duties referred to in the last preceding article is made to appear, the court shall order the application for the substitution to be served on the party in lieu of whom the substitution is demanded, who shall be allowed the time of four days within which to file an answer; and the default of an answer within the said time shall be deemed to be an admission of the demand contained in the application.

(2) Where there are reasons to believe that the incapacity arises from insanity or any other cause which prevents such answer, the court shall take such steps as it may deem just and expedient in order to ascertain the facts.

Duration of suspension.

Substitution of executors, administrators, etc. Amended by:

IX. 2004.11.

Service of application for substitution.

Answer.

Power of court.

Title IV

OF INTERDICTION AND INCAPACITATION

520. (1) A demand for the interdiction or incapacitation of persons who are habitual idiots, insane, frenzied or prodigal, is made by an application to the Court of voluntary jurisdiction.

(2) The application shall contain a statement of the facts on which the demand is founded and an indication of the witnesses, if any, to such facts.
(3) Any documents in support of the demand, shall be filed together with the application.

Amended by: IX. 1886.88.

Application for interdiction or incapacitation. Amended by: IX. 1886.89;

IX. 2004.11.

Contents of application.

Documents.

521. Interdiction or incapacitation may be demanded -

(a) by a husband against his wife, or by a wife against her husband;
(b) by any person against another related to him by consanguinity;
(c) by any person who is related by affinity to the person whose interdiction or incapacitation is demanded and who may be called upon to supply maintenance to such

Persons who may demand interdiction or incapacitation. Amended by:

IX. 1886.89;

L.N. 46 of 1965;

LVIII. 1974.68.

person;
(d) in case of idiocy or other mental infirmity, by the Attorney General; unless the demand shall have been made by any other person.

Examination of person whose interdiction is demanded. Appointment of temporary curator. Amended by:

IX. 1886.89.

Appointment of curator. Amended by:

IX. 1886.89.

Applicability of provisions relating to tutorship.

Remuneration to curator.

522. It shall be lawful for the court to cause the person whose interdiction or incapacitation is demanded to appear before it, to question such person and cause him to be examined by one or more experts; and the court may, in all cases, appoint a temporary curator to take charge of his person and property.

523. (1) If the court finds that there is just cause for the interdiction, it shall appoint a curator to administer the property of the person interdicted.

(2) The provisions relating to the tutorship of minors shall, in so far as applicable, apply to the curatorship of persons interdicted.
(3) The court may also, on the demand of the curator, either at t h e tim e of his appo intm ent, or sub s equ e ntly, all o w hi m a remuneration, regard being had to the nature of the services and to the property of the person interdicted.

Incapacitation. Amended by: IX. 1886.89.

524. (1) If no sufficient cause for the interdiction is made to appear, it shall be lawful for the court by a decree to order, if the cir c ums t a n ce s of t h e ca se s o requi re, t h at the person wh ose interdiction is demanded be incapacitated from suing or being sued, from effecting any compromise, borrowing any money, receiving any capital, giving a discharge, transferring or hypothecating his property, or perfo rm i ng any act other than an act of mere administration, without the aid of a curator to be appointed in the same decree.

(2) It shall also be lawful for the court, if it deems it necessary, to incapacitate any person from performing all or any of the acts of m e re ad mi nistr a tion , entr usting th e per f or mance ther eof to a curator in such manner as the court may deem fit to direct.

Interdiction or incapacitation to date from decree. Nullity of acts performed after decree.

Amended by: IX. 1886.89.

Invalidation of acts performed previously to the decree.

525. (1) Interdiction or incapacitation shall take effect from the day of the relative decree; and any act performed by the person interdicted or incapacitated, subsequently to such decree, or even subsequently to the appointment of the temporary curator, shall be null.

(2) Any act performed previously to the interdiction or i n capacit a tio n m a y b e ann u lled , if the cause of in terd icti on or incapacitation existed at the time of the performance of the act.

Revocation of interdiction or incapacitation. Amended by: IX. 1886.89.

526. Interdiction or incapacitation shall be revoked, when the cause of the interdiction or incapacitation shall cease to exist.

527. (1) The court shall, in the decree of interdiction or incapacitation, direct that a notice thereof, specifying the terms of the inhibition, be published in the Government Gazette.

(2) A note of such interdiction or incapacitation shall be entered by every notary in a book to be kept for the purpose.
(3) The registrar shall keep a book in which he shall enter the name, the surname, the father ’s name, the place of birth, and the place of residence of the person interdicted or incapacitated and a summary of the decree of interdiction or incapacitation.
(4) The registrar shall before the end of the month of January of every year cause to be published in the Government Gazette a list showing in alphabetical order the names and surnames of the persons appearing in the book kept in accordance with sub-article (3), together where available with the name of the father, the place of birth and the number of the identity card of such persons, and the date of the decree of interdiction or incapacitation.
(5) From the list referred to in sub-article (4) there shall be excluded cases -
(a) where more than eighty years have elapsed since the date of the decree;
(b) where the person would have reached the age of one hundred years;
(c) where the decree has been revoked in terms of article
526; and
(d) where the person interdicted or incapacitated has died. (6) Such book shall, like any other judicial act, be accessible to
any person wishing to see it.

Notice containing terms of inhibition to be published in Government Gazette. Circular letter to notaries. Amended by:

IX. 1886.89; XV. 1913.103;

XVI. 1922.4; XV. 1983.7; XXIV. 1995.205;

XII. 2009.13.

Notaries to enter note in book to be kept for the purpose.

Book of interdictions and incapacitations, to be kept by registrar.

Book accessible to public.

Title V

OF THE PRESENTATION AND PUBLICATION OF SECRET WILLS

528. The registrar shall, in the presence of the judge, receive any secret will presented to him by any testator or notary, and shall give a receipt therefor to such testator or notary.

Amended by: V. 1864.1.

Presentation of secret wills. Receipt. Amended by:

V. 1864.1; VI. 1880.24.

Particulars to be noted down by registrar on presentation of will.

Amended by: V. 1864.1.

529. The registrar shall, either on the paper on which the will is written, or on the paper used as an envelope for same, note down the following particulars:

(a) the date of the presentation of the will;
(b) the name, the surname, the name of the father and the place of residence of the testator;
(c) by whom the will is presented, that is to say, whether by the testator himself, or by a notary, and, in the latter case, the name and surname of the notary;
(d) if the will is presented by the testator himself, his declaration that the paper so presented contains his will;
(e) the circumstance of the presence of the judge at the presentation of the will.

Note of particulars to be signed by registrar, etc. and registered in a book.

Amended by: V. 1864.1;

XV. 1913.104.

Where testator is unable to write.

Judge to check registered particulars with wills.

530. (1) The note of such particulars shall be signed by the registrar, and countersigned by the testator or notary who shall have presented the will, and by the judge; and the registrar shall, within twenty-four hours, register such particulars in a book to be kept by him for the purpose.

(2) If the testator declares that he is unable to write, a mention of such declaration shall take the place of his signature.
(3) A copy of the said book shall be kept by the judge who shall, at least once every quarter, compare the registered particulars with the wills which, accordin g to such book, must be in the custody of the registrar.

Wills to be endorsed with act of delivery. Amended by:

V. 1864.1.

531. (1) The judge shall not allow the registrar to receive from any notary any secret will, unless it is endorsed with the act of the delivery made by the testator to the notary.

(2) Nor shall the judge allow the receipt of any will endorsed as aforesaid, unles s s u ch endors em ent contains the de claration required by law to the effect that the paper delivered to the notary contains the will of the person from whom the notary has received such paper.

Withdrawal of will.

Amended by:

V. 1864.l.

532. (1) A secret will may not be withdrawn before the time co mes for it s op en ing , except by th e testator hi msel f o r by an attorney specially authorized for the purpose.

Act of withdrawal. (2) The testator or attorney withdrawing the will shall sign in the presence of the judge, in the margin or at the foot of the entry in the book referred to in article 530(1) recording the receipt of such will, a declaration that he ha s withdrawn the will; and such declaration shall also be countersigned by the judge.

533. (1) Where a will is to be opened, the court shall by a decree, upon the application of any party interested, appoint the day, time and place for the opening and publication of the will, and order that all interested parties be sum moned: those known, by application, and those unknown, by means of banns to be posted up at the entrance of the building in which the court sits and published in the Government Gazette and in a daily newspaper.

(2) The opening and publication of the will shall not take place before the expiration of four days from the date of service of the said application, or of four days from the date of the posting up of the banns and their publication whichever is the later.

534. (1) The will shall be opened by the registrar in the presence of the judge, at the time and place appointed by the decree of the cou r t, aft e r t h e sign at ures affix e d by the j udge an d th e registrar at the foot of th e not e of th e particul ars ment ioned in article 530, shall have been verified.

(2) After the will is opened, it shall be published in the presence of the judge and the registrar, by the notary who had presented it or, if such notary is dead or absent, or is prevented from attending on account of sickness or for any other reason, or if the will had been presented by the testator himself, by a notary to be selected by the party who made the application for the opening of the will.

Appointment of time for opening and publication of will.

Amended by: V. 1864.1;

XV. 1913.105. Substituted by: XXIV. 1995.206.

Amended by: XI. 1999.2; XXII. 2005.58.

Opening of will. Amended by: V.1864.1;

XXIV. 1995.207.

Publication of will.

535. (1) When the will is published as provided in the last preceding article, it shall be delivered to the notary by whom the publication of the will shall have been made.

(2) The notary shall, in the presence of the judge, sign a receipt in the book referred to i n article 530; and such receipt shall be countersigned by the judge.
(3) Any will delivered in terms of sub-article (1) shall not be deemed to be cancelled from the book referred to in article 530; for the purpose of any document cer t i fyi ng th e ex iste nce or no n- existence of secret wills, and there shall be indicated in any such document, in respect of any such will, the name of the notary who published it and the date of its publication.

Delivery of will to notary.

Amended by: V.1864.1;

XV.1913.106; XXIII.1971.22.

Receipt.

535A.(1) Where any secret wills have been received by the Registrar in accordance with the provisions of this Title which have not been withdrawn by the testators, or opened and published, and one hundred and fifty years have elapsed since the date of t h e presentation of the wills, the registrar shall prepare and publish a list of the said wills in the Gazette.

(2) After the publication of the list mentioned in sub-article (1) in the Gazette, the court shall establish a day and time in which the wills mentioned in the list shall be opened in public without the necessity of their being read. The court shall then order that the said wills be transmitted to the archivist of Notarial Acts who shall register th ese wil l s in a book to be k e p t by h im and the other provisions of this Title regarding the opening and publication of

Opening of wills older than one hundred and fifty years.

Added by: XI.1999.3.

secret wills shall not apply. The court shall draw up a procès-verbal of the opening of the said wills, which shall only state the date and pl ace of their openi ng, and whether the docum ent so publi shed contains a will or not. A copy of such procès-verbal, together with those wills shall be transmitted to the archivist of Notarial Acts, and from that date such wills shall be open to inspection and to the issue of copies thereof.

Declaration of the opening of succession. Substituted by: XXIV. 1995.208. Amended by:

IX. 2004.11.

Issue and posting up of banns. Time for opposition. Amended by:

IV. 1868.9; XXIV.1995.209.

Commencement of time.

Publication and posting up of notice.

Title VI

OF THE DECLARATION OF THE OPENING OF A SUCCESSION

536. In the absence of opposition, the declaration of the opening of a succession may be made by the Court of voluntary jurisdiction, upon an application, in favour of any person in whose name a claim thereto is made.

537. (1) Upon the filing of the application, the court shall issue banns which shall be published in the Gazette and in at least one d a ily newspaper and b e posted up at the entrance of th e building in which the court sits, calling upon all parties interested to enter their opposition by a note, within a time of not less than eight days nor exceeding one month, to be fixed by the judge.

(2) Such time shall commence to run from the day on which the banns are posted up, or last published in either the Gazette or the periodical newspaper, whichever is the latest.
(3) The registrar shall cause a notice signed by him, containing a summary of the contents of the banns, to be pu blished in the Government Gazette, and affixed in the place in which Government Notices or other official acts are ordina rily affixed in the city, suburb or district in which the deceased resided at the time of his death.
(4) If at the time of his death the deceased did not reside in Malta , the s a id notice shall be af fixed in the place in which Government Notices or other official acts are ordinarily affixed in the city, suburb or district, in Malta, wherein it is proved to the satisfaction of the court that he has resided within the last ten years preceding his death; and, failing such proof, the said notice shall be affixed in the place where Government Notices and other official acts are ordinarily affixed in Valletta.
(5) Nevertheless it shall in all cases be lawful for the court to order that the said notice be also affixed in any other place.

Decree of court. Substituted by: XXIV.1995.210.

538. At the expiration of the said time, the court, in the absence of opposition, shall examine the claim of the applicant; and if the claim appears to be justified, the court shall allow the demand and shall declare the succession opened in his favour and may, at the request of the applicant, also establish in its decree, the identity of any other person called to the inheritance and his relative share therein.

539. Pending the application and until the expiration of the said time, it shall be lawful for the court to make any special order with a view to preserving such hereditary rights or property as might suffer prejudice or deterioration.

540. The declaration of the opening of a succession in favour of any person in vi rtue of a decree of t h e Court of voluntary jurisdiction, shall not operate so as to bar any other person entitled thereto from claiming the inheritance or any portion thereof before the competent court of contentious jurisdiction.

Conservatory measures.

Declaration of opening of succession not to bar action by other person before court of contentious jurisdiction. Amended by:

IX. 2004.11.

Title VII

OF THE INVENTORY

541. The declaration by any person that he accepts an inheritance, whether testamentary or ab intestato, with the benefit of inventory, or that he will not accept the inheritance before the making up of an inventory, shall be made by a note to be filed in the Court of voluntary jurisdiction.

542. (1) Upon the filing of such note, the person desiring to make up the inventory shall swear, before the registrar, that he will faithfully describe the estate.

(2) The registrar shall at the foot of the note make a mention of the oath so taken.

Acceptance of inheritance with benefit of inventory to be made by a note. Amended by:

V. 1864.2; IX. 2004.11.

Oath by person filing the note. Amended by:

V. 1864.2.

543. (1) The inventory shall contain a description of all the estate, specifyin g in detail a ll wearing apparel and househo l d goods, gold and silver articles, jewellery, money and other movable property, the debts due to the deceased, all rights of action and all immovable property as well as all debts or other liabilities of the estate.

(2) The inventory shall also state the value of the movable property, according to a valua tion made by experts, unless the court, if it be satisfied that the absence of such valuation will not be prejudicial to the parties interested, shall, in lieu of such valuation, allo w a mere statement o f the value to be m a de by the perso n making the inventory.

Contents of inventory. Amended by: V. 1864.2.

544. Upon the application of the person making the inventory, the court shall, by a decree, fix the place, day and time for the publication of the inventory by a notary to be nominated by the applicant.

545. The court shall, in the said decree, direct that all parties interested be sum m oned to be present, if they so desir e, at the publication of the inventory.

Appointment of time for publication of inventory. Amended by:

V. 1864.2.

Summoning of interested parties, Amended by:

V. 1864.2.

by application, by banns.

Amended by:

IV. 1862.11;

V. 1864.2;

XXIV. 1995.211;

XXII. 2005.59.

546. (1) The parties interested shall be summoned: those known, by application, and those unknown or uncertain, by means of banns to be posted up at the entrance of the building in which the court sits. The registrar shall also publish a notice in the Gazette and in a daily newspaper inviting all those parties interested to be present at the publication of the inventory.

(2) The application as well as the banns shall state the time and place of the publication of the inventory, and the name of the notary by whom the publication is to be made.

Publication of inventory. Amended by: V. 1864.2;

XXIV. 1995.212.

Interested persons may impugn inventory.

547. (1) The publication of inventory shall take place on the date and at the place and time established by the court.

(2) The inventory, after its publication, may be impugned by any perso n interested, ev en though such p erson may have been present at such publication.

Forfeiture of benefit. Amended by: V. 1864.2.

Applicability of ss.

542 to 547 to all

inventories under

the authority of the

Court of voluntary

jurisdiction.

Amended by:

V. 1864.2;

XV. 1913.108;

IX. 2004.11.

Amended by: IX. 2004.11.

Emancipation. Amended by: IX. 1886.90;

XXIV. 1995.213.

548. The default of compliance with the provisions of the preceding articles of this Title, with intent to cause prejudice to any party interested, shall deprive the heir of the benefit of inventory.

549. The provisions of articles 542 to 547 inclusive shall apply to every inventory which, according to law, is to be made under the authority of the Court of voluntary jurisdiction.

Title VIII

OF THE EXECUTION OF ACTS IN PURSUANCE OF DECREES OF THE COURT OF VOLUNTARY JURISDICTION

550. (1) Emancipation is effected by virtue of the decree by which it is granted.

(2) Nevertheless, if the court in the decree orders that such emancipation be effected by means of a notarial deed, the decree shall not become operative until such deed is executed.

Agreements requiring authorization of court to be effected by notarial deed. Exception. Amended by:

IX. 1886.90.

551. Any agreement the validity of which is dependent upon the authorization or leave granted by the court, shall in all cases, under pain of nullity, be effected by means of a notarial deed:

Pr ov id ed th at th is art i c l e shal l no t app l y t o any o b l i ga ti on entered in the acts of this court.

Validity of certain obligations authorized by the Court of voluntary jurisdiction to depend on registration in Public Registry. Amended by:

XLVI. 1973.108; IX. 2004.11.

552. The decree of the court shall not make valid any obligation assumed by any minor in any contract in which other parties have expressly bound themselves to indemnify such minor, unless such contract be registered in the Public Registry within one month from the date of the decree or from the day stated in the decree.

553. Any decree granting authorization or leave to enter into any agreement or to make any waiver shall cease to be operative, if the deed relating to the said agreement or waiver is not executed within six months from the date of the decree or from the day stated in the decree.

554. The registrar shall cause every obligation with hypothecation of property entered in the acts of the court to be registered in the Public Registry, within four days from the date of such obligation, unless within such time the registration shall have been made by any other person.

555. The provisions of article 283 shall apply in the case of notarial deeds executed in pursuance of decrees of this court.

Title IX

OF THE TAXATION OF CERTAIN FEES

556. (1) Upon the demand of any party interested, the registrar shall tax the fees due to advo cates, notaries publ ic or legal procurators, for extra-judicial services performed by them, saving the right of appeal by application, within one month, to the court of contentious jurisdiction praying that the taxation be amended.

(2) The demand for the taxation of fees shall be made by means of a note showing the services in respect of which the taxation is demanded.
(3) f the taxation is demanded by the creditor he shall verify on oath, before the registrar, the contents of the note.
(4) The said time shall commence to run, in regard to the person demanding the taxation, from the day on which the taxation is made, and in regard to the debtor, from the day on which the taxed bill is served on him.
(5) The expiration of the said time shall not operate so as to bar t h e deb t or fro m impug ning the ex istence of t h e claim or from proving its extinguishment in any manner admissible according to law.

Period of validity of decrees of authorization. Amended by:

X. 1856.10; XV. 1983.8.

Duty of registrar to cause registration of hypothecs. Amended by:

XI. 1859.27; VI. 1880.25.

Duties of notaries.

Added by:

XV. 1913.109.

Taxing of extra- judicial fees. Amended by:

VI. 1880.26; XXXI. 1934.52;

XXIV. 1995.214.

557. The provisions of the last preceding article shall not dispense the registrar from taxi ng the fees due to advocates, notaries or legal procurators, where such fees, although not relating to causes brought before the courts, refer to proceedings under the authority of the courts.

Taxing of fees in respect of proceedings under authority of superior courts. Amended by: XXIV. 1995.215.

BOOK THIRD

OF CERTAIN MATTERS RELATING TO JUDICIAL PROCEDURE

Relevance of evidence.

Best evidence to be produced.

Rejection of irrelevant evidence. Amended by: I. 1880.1; LXII. 1948.3;

XXIV. 1995.216.

Decree on rejection of evidence.

Entry in record of disallowance of question to

witness.

Title I

OF EVIDENCE

558. All evidence must be relevant to the matter in issue between the parties.

559. In all cases the court shall require the best evidence that the party may be able to produce.

560. (1) The court shall disallow any evidence which it co nsiders to be i r relevant or superfl uou s, o r w h ich it does n o t consider to be the best which the party can produce.

(2) Where evidence tendered by any party is disallowed, it shall be lawful for such party to demand that the ruling of the court in regard to the disallowing of such evidence be made by a decree; but, where only a question to a witness has been disallowed, the party may dem a nd only that a record thereof be made i n the proceedings, in the manner which the court shall, a ccording to circumstances, direct.
(3) Where in any cause or matter it is not possible, in consequence of damage to or loss of any court or other document, for any party to such cause or m a tt er to com p ly wi th any requirem e nt o f th is Code relating to t h e formal prod uction of documents or otherwise, the court may either dispense with such requirement or give such other directions as the circumstances of the case require:
Provided that in proceedings before the courts of civil jurisdiction, the parties to the cause shall be bound to assist the reg i st rar in co mp il in g a co py of the court records or other documents which have been damaged or lost and, within such time as the court may establish, they shall provide the registrar with such information and documentation in their possession which will assist t h e r e gi str a r i n comp il in g th e co urt r e co rd s o r ot her documents damaged or lost in as full a manner as possible.

Power of court to require object of evidence.

Onus of proof on person alleging.

561. It shall be lawful for the court to require the party tendering evidence to state the object of the evidence.

562. Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it.

Sub-title I

OF WITNESSES

563. All persons of sound mind, unless there are objections against their competency, shall be admissible as witnesses.

563A. (1) Where a person is called as a witness, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence only if, in the opinion of the court, he is suitably qualified in the relevant matter.

(2) Where a person is called as a witness, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3) The opinion given by any person according to the p r ovision s o f this article shall be with out p r eju d ice to the provisions of article 681 and to the court’s power to appoint a referee according to the provisions of article 646.

Competency of witnesses. Amended by: VII. 1880.14.

Admissibility of ex parte expert opinion and certain

expressions of non- expert opinion.

Added by:

XXIV. 1995.217.

563B. (1) A person who is suitably qualified on account of his knowledge or experience, is competent to give expert evidence as to the law of any other foreign state, irrespective of whether he has acted or is entitled to act as an advocate, or in any judicial or legal capacity in that state.

(2) The provisions of article 563A(3) shall mutatis mutandis
apply to the provisions of this article.

Evidence of foreign law. Added by:

XXIV. 1995.217.

564. Whatever may be the age of a witness whom it is intended to produce, he is admissible as such, provided he understands that it is wrong to give false testimony.

565. (1) Any of the parties to a suit, whatever his interest th erei n, shall be competen t to give evid ence, either at his own request, or at the request of any of the other parties to the suit, or if called by the court ex officio.
(2) The provisions of this Code respecting witnesses shall apply to such party.

Age not to constitute ground of inadmissibility.

Admissibility of parties to give evidence. Amended by:

XV. 1913.110.

566. (1) The husband or wife of a party to a suit shall be com petent and compellable to give evidence in such suit at the request of any of the parties thereto:

Provided -
(a) that the husband may not be compelled to disclose any communication made to him by his wife during the marriage or the wife compelled to disclose any communication made to her by her husband during the marriage;
(b) that the husband or wife may not be compelled to

Admissibility of husband or wife of party to a suit as witness.

Added by:

XV. 1913.111.

Amended by:

XXIV. 1995.218.

her husband.
(2) The provisions of this Code respecting witnesses shall also apply in the case of the husband or wife.

Interest in suit not to be a bar to admissibility of witness.

Amended by: XV. 1913.112.

Summoning of witnesses. Amended by: IX. 1886.91.

When adjournment may be granted for production of witness.

567. No objection to the competency of any witness shall be admitted on the ground that he is interested in the issue in regard to which his evidence is required or in the event of the suit, saving any objection touching his credibility.

568. (1) Witnesses shall be summoned to appear by means of a subpoena to be issued on the application of the party interested.

(2) No adjournment of a cause shall be granted for the purpose of enabling the parties to summon witnesses, or on the ground of the non-attendance of any witnesses summoned, unless -
(a) the necessity for the production of the witness arises during the hearing of the cause; or
(b) the application for the summoning of the witness has been made in time to allow an interval sufficient for the service of the subpoena on the witness and for the lapse of the term before the expiration of which the witness, according to the provisions of article 572, is not bound to attend; or
(c) by a note, the opposite party gives his consent, in the manner provided in article 150(1)(c).

Subpoena ad testificandum. Amended by: XV. 1913.113; XV. 1983.9.

Form and contents of writ.

569. (1) The subpoena shall contain an order to appear at a stated place and time, for the purpose of giving evidence, whether before the court, arbitrators, or before referees, or before one or more officers authorized by law to examine witnesses.

(2) The writ of subpoena shall be in the prescribed form. The part y applying fo r a subp oena shall fill in th e partic ulars to be contained in the writ as provided in sub-article (1) and in article
570, and shall file the writ simultaneously with the application for the issue thereof.

Subpoena duces tecum.

Demand for issue of subpoena in inferior courts. Amended by:

XV. 1913.114; VIII. 1990.3.

570. The writ may require the witness to produce any book, document, or other thing, which belongs to the contending parties or to any of them, or which is under the charge or custody of such witness, or which, according to law, he is bound to produce.

571. In the Court of Magistrates (Malta), and in the Court of Magistrates (Gozo) in its inferior jurisdiction, the demand for the issue of a subpoena may be made orally.

572. A witness is bound to appear in court on the date and time prescribed in the subpoena provided that he is served with the said subpoena four days before such date, which period is to run from the date of service of the subpoena:

Provided further that it shall be lawful for the court, in urgent cases, to order any witness to appear from day to day, or from hour to hour, or even only within such interval of time as may be necessary for him to appear in court.

Time for attendance of witness. Amended by: XV. 1913.115; XLIX. 1981.6; VIII. 1990.3. Substituted by:

XXIV. 1995.219.

573. No witness residing in Malta is bound to attend to give evidence in Gozo, or vice versa, unless the advocate of the party applying for such evi d ence, or the party h i m s el f if he has no advocate, shall swear that in his opinion the evidence is material, and unl ess, simult aneou s l y wi th t h e issue of th e su bpoena, he deposits with the registrar such allowance as may be due to the witness according to law.

573A. Any officer or employee of a government department or any officer or other employee of any body having a distinct legal personality may be authorised by the person subpoenaed to give evid ence in h i s st ead on an y mat t er abo u t which he is more knowledgeable and relating to the said department or body and on which the said person subpoenaed was required to give evidence:

Provided that the person subpoenaed shall give such evidence personally if it is so stated in the subpoena.

Oath as to relevancy of evidence of

witness outside the jurisdiction.

Deposit of allowance.

Another person to give evidence instead of the person sub- poenaed.

Amended by: XXIV. 1995.220.

574. Any person being present in the court may, upon the oral dem a nd of either of the cont ending parties, be called upon forthwith to give evidence, as if he had been summoned to attend by means of a subpoena.

575. If any witness duly summoned fails to appear when called on, he shall be guilty of contempt of court and shall forthwith be punished accordingly; and it shall also be lawful for the court, by means of a warrant of escort or arrest, to compel such witness to attend for the purpose of giving evidence.

576. In the case referred to in the last preceding article, it shall b e l a wf ul fo r the court, on go od cause b e in g show n to its satisfaction, to remit the punishment.

577. (1) Save as otherwise provided in this Code, the witnesses shall be examined in open court at the trial of the action and viva voce.

(2) Witnesses may not be assisted or advised by any person.
(3) Witnesses shall be sworn previously to their examination, and th e oath sh al l, u n less th e law pr ovi des oth e r w ise, be administered to them by the registrar.

Persons present in court may be called to give evidence.

Penalty for non- attendance of witness duly summoned.

Power of court to remit punishment.

Witnesses to be examined viva voce.

Amended by: IX. 1886.92; XV. 1913.116.

Witnesses may not be assisted or advised.

Oath.

578. Leading or suggestive questions may not, without special permission of the court, be put on an examination-in-chief.

Leading or suggestive questions.

examination.

Questions in cross- examination.

witness; and in suc h cross-ex amination le ading or suggestive questions are allowed.

580. (1) In cross-examination, a witness may only be questioned on the facts deposed in his examination, or on matters calculated to impeach his credit.

(2) When the party cross-examining desires to prove by the sam e witness any circumstance not connected with the facts deposed in the examin ation, he must, unless th e court, for just cause, shall direct otherwise, produce such witness in due time and examine him as his own witness; and in such case, it shall be lawful for the court, upon th e or al demand of such party, to order the witness not to leave the court in order that he may be again called an d q u est i oned; and such order sh all have th e ef f e ct o f th e subpoena mentioned in article 568(1).

Questions arising out of answers given by witness.

581. When both the examination and cross-examination are concluded, no further questions may be put by either of the parties; but it shall be lawful for the court, or for the par t y with the permission of the court, to ask such questions as arise out of the answers g i ven in the course of t h e exam i n atio n or cross- examination.

Questions by court. 582. It shall be lawful for the court, at any stage of the examination or cross-examinati on, t o put to t h e witness such questions as it may deem necessary or expedient.

Witness may refresh his memory.

Party producing witness may not impeach his credit by evidence of bad character.

How opposite

party may impeach

witness.

Former statement to be related to witness in case of impeachment of his credit by

evidence of former statement.

583. A witness may refresh his memory by referring to any writing made by himself or by another person under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case, the writing must be produced and may be seen by the opposite party.

584. A party producing a witness shall not be allowed to impeach the credit of the witness by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony.

585. A witness may be impeached by the party against whom he is called by contradictory evidence, or by evidence that his general reputation for truth is bad.

586. (1) Before impeaching the credit of a witness by evidence that he has made at other times statements inconsistent with his present testimony, the alleged st atements tog e ther wi th th e circumstances of time, place and persons present must be related to him and he must be asked whether he has made such statements and he must be allowed to explain them.

(2) If the statements be in writing, they must be shown to the witness before any question concerning such statements is put to him.

587. The witness shall answer any question which the court may allow to be put to him; and the court can compel him to do so b y co mmit tin g h im to detent io n u n t il he shall h a v e swo r n an d answered.

588. (1) No advocate or legal procurator without the consent of the client, and no clergyman without the consent of the person making the confession, may be questioned on such circumstances as m a y hav e be en st ate d by t h e c l i e nt to t h e ad v o ca te or le gal procurator in professional confidence in reference to the cause, or as may have come to the knowledge of the clergyman under the seal of confession or loco confessionis.

(2) Unless by order of the court, no accountant, medical practitioner or social worker, psychologist or marriage counsellor may be questioned on such circumstances as may have been stated by the client to the said person in professional confidence or as may have come to his knowledge in his professional capacity.
(3) This privilege extends to the interpreter who may have been employed in connection with such confidential communications.

Witness bound to answer questions allowed by court.

Privileged communications. Amended by: XXIV. 1995.221; XVII. 2003.20;

X. 2004.20.

Privilege to extend to interpreter.

589. A witness cannot be compelled to answer any question the answer to which may subject him to a criminal prosecution.

590. (1) It shall be in the discretion of the court to determine, in each particular case, when a witness is not bound to answer a particular question on the ground that the answer to such question might tend to expose his own degradation, or when a witness will not be compelled to give eviden ce as to facts the disclosure of which will be prejudicial to the public interest.

(2) No witness may be compelled to disclose any information d e rived from or relating to any do cument belon g ing to or in possession of any civil, military, naval or air force department of the public service and which is an exempt document under article
637.

Incriminating questions.

Discretionary power of court as to degrading questions, etc. Amended by:

XI. 1859.28; II. 1940.11;

XXIV. 1995.222.

Privilege as to facts known ratione officii.

591. In general, no person who has been present during the trial of a cause may be produc ed as a witness in the same cause; nevertheless it shall be in the discretion of the court, for just cause, to dispense with this rule in particular cases.

592. (1) Each witness shall be examined separately. It shall, however, be lawful for the court to allow two or more witnesses to be confronted with each other; and in any such case, each of the witnesses may be questioned in the presence of the other witnesses.

(2) Referees shall be examined in the presence of each other, u n less the co urt deems it expedien t, in any part icul ar case, t o examine each referee separately.

Person present at trial may not be produced as witness. Discretionary power of court.

Witnesses to be examined separately. Confronting witnesses. Amended by: XI. 1858.5;

XV. 1913.117.

Examination of referees.

593. (1) If a witness is deaf and dumb but able to write, the questi ons shal l b e pu t t o hi m in wri tin g; and i n such case th e questions and the answers shall be publicly read out by the registrar, and afterwards kept in the record of the cause.

Deaf and dumb witnesses, etc.

be lawful for the court to appoint as interpreter some person able to understand him.
(3) If the witness is dumb but not deaf, or vice versa, the court shall cause his examination to be conducted in such manner as may appear to it most conducive to ascertain the true testimony of the witness.

Notes of the evidence. Amended by: Order-in-Council,

1899, s. 12; XV. 1913.118;

XVI. 1929.7; XI. 1932.3; XXXI. 1934.53;

XXXII. 1965.8; XIX. 1965.15; XI. 1980.3.

Reading over of evidence to witness.

Fact of reading of evidence to be recorded.

Alterations, corrections or additions.

Inclusion of notes of evidence in record not to bar recalling of witness before appellate court.

594. (1) The substance of the answers given by the witnesses shall be take n down. Every answer whic h may have a mate rial bearing o n the m erit s o f th e case shall be taken do wn wo rd for word:

Provided that in the inferior courts, it shall be sufficient that notes of the evidence of the witnesses be taken down in brief.
(2) The notes of the evidence so taken down shall be read over to the witness, and, after being signed by the registrar, shall be filed in original in the record of the cause.
(3) The fact of the reading over of the notes of the evidence to the witness shall be recorded at the foot thereof before they are signed as aforesaid.
(4) The notes of the evidence shall be clearly and legibly typewritten or written in ink. Any alteration, correction or addition required to be made before or after the reading over of such notes to the witness, shall be made by means of a postil in the margin or at the foot of the notes, to be countersigned by the registrar, and an y cance lla tio n shal l be mad e i n such manner as to lea v e the words cancelled distinctly legible.
(5) The inclusion of the notes of the evidence in the record shall not operate so as to bar any witness heard before the court below from being recalled before the appellate court either by the parties or upon an order of the court ex officio.

Employment of stenographers. Added by: XXXI. 1934.54. Amended by: XII. 1978.6.

595. (1) Notwithstanding the provisions of the last preceding article, the court m ay, at the request of both parties, or, having regard to the circumstances of the case, ex officio, order that the answers given by the witnesses, or the substance thereof, be taken down in shorthand by means of stenographers appointed for the purpose or be recorded by electromagnetic means. Shorthand notes shall be taken down in indelible ink and signed on each page by the stenographers and shall, together with the transcript, be inserted in origina l in the rec o rd. The el ectromag n etic r e cord in g shal l b e transcribed under the direction of the registrar and the transcript shall be inserted in the record. In either case, the transcript may be handwritten or typewritten and shall be read over to the witness, during or after the sitting, by the registrar who shall make a note of such reading at the foot of the transcript.
(2) Should the witness desire to correct or add anything in or to the deposition as transcribed, the registrar shall make a note of such
addition or correction, and in any such case it shall be lawful for either of the parties to reproduce the witness before the court in order that he may confirm the addition or correction.
(3) The witness may be called upon to appear before the registrar by means of a letter signed by him, and the provisions of this Code enforcing the attendance of witnesses shall apply to any such witness so called upon.
(4) The party producing the witnesses shall deposit with the registrar an am oun t suff icient to secure the stenog raphers’ or recording fees.

596. (1) If the court does not understand the language in which the evidence is given, it shall appoint a qualified interpreter at the provisional expense of the party producing the witness.

(2) The official interpreter shall, on entering upon the duties of his office, swear before the court that he will faithfully report the words of the witnesses.
(3) The interpreter appointed by the court shall take the said oath previously to the examination of the witness.
(4) The oath shall be administered to the interpreter by the registrar.
(5) Any interpreter may be objected to on good cause shown.

Employment of interpreter. Amended by: XV. 1913.119; XXXI. 1934.55;

L.N. 46 of 1965; XXIV. 1995.223.

Oath by interpreter.

Oath by interpreter appointed by court.

Registrar to administer oath.

Objection to interpreter.

597. The examination or cross-examination of any witness shall not be interrupted, without leave of the court.

598. (1) As a rule, the court shall not consider any testimony respecting facts the knowledge of which the witness states to have obtained from the relation or information of third persons who can be produced to give evidence of such facts.

(2) The court may, either ex officio or upon the objection of any party, rule out or disallow any question tending to elicit any such testimony.
(3) Nevertheless the court may require the witness to mention the person from whom he obtained knowledge of the facts to which any such question refers.

Examination or cross-examination not to be interrupted.

Hearsay evidence.

Amended by:

XV. 1913.120.

599. The court may, according to circumstances, allow and take into consideration any testimony on the relation of third persons, where such relation has of itself a material bearing on the subject- matter in issue or forms part thereof; or where such third persons cann o t be pro duc ed to gi ve ev idence a nd the facts are such as cannot otherwise be fully proved, especially in cases relating to births, marriages, deaths, ab sence, easeme n ts, boundaries, possession, usage, public historical facts, reputation or character, words or deeds of persons who are dead or absent and who had no interest to say or write a falsehood, and to other facts of general or

When hearsay evidence is admissible. Amended by: XV. 1913.121.

Dying declarations, etc. Amended by:

V. 1913.122.

Arrest of false witness. Amended by: VIII. 1990.3.

Stay of proceedings.

public interest or of public notoriety.
600. It shall be lawful to produce any declaration made in writing in any place before a magistrate or other person, whether in arti cu lo mo rti s or at an y oth e r tim e, in the presence or in the absence of the parties, with or without oath, provided it is shown that such de claration was ma de deliberately a n d in s u ch circumstances as lead to the belief that there was no intention to depart from the truth, and that the party who made such declaration would have been a competent witness if he could be called to give his evidence at the trial.

601. (1) Where it appears to the court that a witness has become guilty of false testimony, it shall order that he be forthwith arrested, and shal l cau s e a copy of the acts to be transmi tted, without delay, through the registrar, to the Court of Magistrates in order that proceedings may be taken according to law.

(2) In any such case, it shall be lawful for the court, upon the oral demand of either of the parties, to stay the proceedings in the act io n i n whi c h th e wi tn ess has dep o sed, unt il t h e crim i n al proceedings against the witness shall have terminated, provided this may be done without prejudice to the other party, and provided the testimo ny impeach e d as false be such as t o b e lik el y t o b e ar substantially on the merits of the cause.

Addition or correction by witness or interpreter. Amended by: XXXI. 1934.57.

602. (1) If the witness or interpreter, at any time before the hearing of the cause is concluded, wishes to make any addition or correction, the court shall allow such addition or correction and shall give weight thereto according to circumstances.

(2) Any such addition or correction shall be noted down and certified in accordance with the provisions of articles 594 and 595.

Identification of persons or objects.

Witness not to leave court.

Communication between witnesses.

Examination of witness about to leave Malta, etc. Amended by:

X. 1856.11; IV. 1868.10; IX. 1886.93; XV. 1913.123; VIII. 1990.3;

XXIV. 1995.224; XXXI. 2002.155.

603. In order to prove the identity of any person or object it shall not be necessary that the witness should point out such person from among other persons, or pick out such object from among other similar objects, unless the court should think it expedient to adopt such course.

604. No witness may leave the court until he is dismissed by the court.

605. It shall be lawful for the court, either of its own motion or upon the demand of the parties, to prevent any witness who has been examined from holding any communication whatever with any other witness who is about to be examined.

606. (1) Where any person whose evidence is required in a cause which is pending, is about to leave Malta, or is so infirm or advanced in years that he might die or become unable to give his evidence before the time when such cause will come up for trial, or is unable to attend the trial, it shall be lawful for the court, saving the cases referred to in article 611, to commit the examination of such pers on to a judicial as sis t ant; and in any such case, the questions put to the witness, together with his answers thereto, shall be taken down in writing, and the deposition shall be signed or marked by the witness himself.

(2) The demand for the examination of any person as provided in subarticle (1), if made before the day appointed for the trial or the continuation of the trial of the cause, shall be by an application and the applicant shall swear that he has reason to believe that the witness is about to leave Malta or is unable to appear before the court, as the case may be; during the hearing such demand may be made orally.
(3) Where the cause is pending before any of the superior courts, or before the Court of Magistrates (Malta), and the person to be examined under the provisions of this article is in the Island of Gozo or of Comino, it shall be lawful for the court to commit the examination of such person to a judicial assistant; and where the cause is pending before the Court of Magistrates (Gozo), and the person to be examined as aforesaid is in the Island of Malta, it shall be lawful for the court to commit the examination of such person to a judicial assistant.
(4) In the cases referred to in this article, the oath may be administered by the judicial assistant.
(5) The party by whom the evidence is required shall, before the order of the court is carried out, deposit with the registrar a sufficient sum to cover any expense which may be incurred for the execution of the order; and in default of such deposit, it shall be lawful for the court to decide the cause without such evidence.

Form of demand for examination.

Examination of witness outside jurisdiction of court.

Judicial assistant to administer oath.

607. The judicial assistant shall record any objection raised by the contending parties against the competency or credibility of any witness.

608. An examination under the provisions of article 606 may be ordered at any stage of the proceedings.

609. Any deposition taken in the manner provided in articles 606 and 607 shall also be signed by the judicial assistant, and shall then be sealed by the Registrar, and filed in the record of the proceedings.

610. (1) The provisions of article 606 shall, independently of the rea so ns m en tio ned in t hat article, apply also in any case in which, in an action before the Civil Court, First Hall, a demand to that effect is made, by means of a note, by all parties to the action, and also in the case where the court so orders.

(2) In any such case, the provisions of the last part of article
606(1) shall not apply; but the answers given by the witnesses shall be taken down in the manner provided in article 594(1), and the de po si t i o n s h a l l be sig n e d or m a rk ed by th e w i t n ess a n d
countersigned by the judicial assistant who shall transmit it to the registrar.

Judicial assistant to take down objections to competency or credit of witnesses. Amended by:

XXIV. 1995.225. Substituted by:

XXXI. 2002.156.

Examination of witness under article 606 may be ordered at any stage of the proceedings.

Signing and sealing of deposition. Substituted by: XXXI. 2002.157.

Deposition may be taken independently of reasons mentioned in article 606. Added by:

XV. 1913.124. Amended by:

XXVII. 1979.19; XXIV. 1995.226;

XXXI. 2002.158.

Witnesses or questions objected to.

Re-examination of witness in court.

(3) If any question shall arise before a judicial assistant as to the competency or relevancy of a witness, or as to the admissibility or relevancy of any question put to a witness, the judicial assistant shall decide the question and record his decision, saving the right of the party aggrieved, in the case of rejection of the witness or question, to apply to the court.
(4) All other provisions of this Code relating to the examination of witnesses before the court s h all apply to any examination under this article, in so far as they are applicable.
(5) Nothing in this article contained shall prevent the court from ordering, either of its own motion or upon the demand of any of the parties, where necessary, that a witness examined under the provisions of this article be recalled and re-examined before it.

Examination of witness about to leave Malta, etc., whose evidence is required before inferior courts. Amended by:

X. 1856.12;

XV. 1913.125,126

XXIX. 1939.3;

L.N. 4 of 1963;

L.N. 46 of 1965;

XXXI. 1966.2;

LVIII. 1974.68;

VIII. 1990.3;

XXIV. 1995.227.

611. (1) Where the evidence of any person as provided in article 606 is required before the Court of Magistrates (Malta), or before the Court of Magistrates (Gozo) in its inferior jurisdiction, the witness shall be examined by the magistrate himself, but in the latter case the magistrate shall reduce the evidence to writing and shall cause it to be signed or marked by the witness.

(2) Whenever the Magistrate of the Court of Magistrates (Gozo) is temporarily absent from Gozo with the permission of the Minister responsible for justice, or is, through a lawful impediment, precluded from performing his duties, the registrar of the said court may be authorized by the Attorney General to take the evidence of any person as pro v ided in article 60 6 and t o admi nister the necessary oath.
(3) Nevertheless, the provisions of article 606(3) shall be applicable to any of the courts mentioned in sub-article (1) where the person to be examined is not in the Island or Islands where the court, before which the evidence is required, sits.

Applicability of article 606 in cases of witnesses disallowed by

court of first instance.

612. (1) The provisions of article 606 shall also apply in the cas e where, for the rea s ons s e t out in tha t a r tic l e, the r e are sufficient grounds to believe that a witness whose production has been disallowed in the court of first instance will not be able to attend before the appellate court.

(2) In any such case, the examination of the witness shall be ordered by the court before which the cause is pending, but the deposition shall be kept closed and sealed until the appellate court shall have declared the witness to be competent.

Evidence of person residing abroad. Amended by:

XI. 1977.2; VIII. 1990.3;

XXIV. 1995.228.

Stay of

proceedings.

613. Where it is made to appear to the satisfaction of any of the superio r courts, or of the Cour t of Magistrates (Gozo) in its superior jurisdiction, that the evidence of any person who is absent from Malta is indispensable for the determination of any cause pending before any of such courts, it shall be lawful for the court to make an order declaring the exam inat ion o f su ch w itn ess to be necessary and the court may stay the proceedings after ha ving complied with the provisions of article 158 and adjourn the cause to a time within which such evidence is to be obtained.

614. (1) The demand for any such examination shall be by application if made at any time before the hearing of the cause, or oral if made duri n g the hearing; and in either case, the party dem a nding the examin ati on shall produce the interrogatories reduced into writing, and state the name and address of the person who is to represent him during the examination.

(2) The court shall not receive such interrogatories if they are not accompanied by a translation in the language of the place where the witness is to be examined, unless it is made to appear to the satisfaction of the court that it is impracticable to prepare such translation; in which case, a note of such fact shall be entered in the record of the cause and mention thereof shall be made in the letters of request referred to in article 618.
(3) Any such translation shall be signed, and its correctness verified on oath before the registrar, by the translator.

Form of application for letters of request. Amended by:

XV. 1913.127; XXIV. 1995.229.

Production of interrogatories.

Translation of interrogatories.

Translation to be verified on oath.

615. The party demanding the examination shall affirm upon oath that he knows, or, that he possesses information which he has sufficient reason to believe to be true, that the proposed witness is in the place stated by him and that such witness is in a position to certify the truth of the facts stated in the interrogatories.

616. If the demand referred to in article 614 is allowed, the opposite party shall have the right to appoint a person to represent him at the time of the examination, the name and address of such person being stated to the court within the time fixed in the decree.

617. A copy of the interrogatories reduced into writing shall be served on the opposite party or on his advocate.

618. On the expiration of the time referred to in article 616, the registrar, upon a decree to be made by the court for the purpose, shall draw up a letter of request addressed to one of the judges or magistrates of the place in which the request is to be executed, or to any other person or persons as stated in the decree, requesting such judge, magistrate or other person or persons to examine on oath the witness; a copy of the decree and of the interrogatories shall be annexed to the letter of request which shall contain the name and description of the persons appointed by the parties as their agents.

619. The letter of request referred to in the last preceding arti cle, to gether wi th t h e accompanyin g do cu ment s, sh al l be transmitted by the registrar to the Minister responsible for justice, who shall forward it to the proper authorities with a request that it may be executed:

Provided that the court may dispense with the requirement of this article where any tr e a ty, convention, agreeme n t or understanding, between Malta and another country or which applies to both such countries or to which both such countries are a party, provides for direct transmission of le tters of request between judicial authorities.

Oath by person applying for letters of request.

Opposite party may appoint a representative. Amended by: XXIV. 1995.230.

Interrogatories to be accessible to opposite party. Substituted by: XXIV. 1995.231.

Drawing up of letter of request.

Transmission of letter of request and documents to Minister responsible for justice.

Amended by: L.N. 4 of 1963; XXIV. 1995.232; XXXI. 2007.27.

Duty of person demanding examination.

Method of examination by interrogatories. Powers of examiner.

Notice of time and place of examination to be given to representatives of parties. Examination to be reduced into writing.

Amended by: L.N. 4 of 1963;

XXIV. 1995.233.

Provisions of this article to be stated in letter of request.

620. It shall be the duty of the party demanding the examination to solicit the authority or person requested to take the examination, to carry out such examination in accordance with the terms of the letter of request.

621. Before the authority or person requested to take the ex aminati on, th e q u esti ons shall b e p u t accord ing t o th e interrogatories transmitted with the letter of request, and, in cross- examination, there shall be put such other questions as the agent of t he o ppo site party may requi re; the examiner may also put any other questions which, as a result of the answers given, he may deem or the agent of the party demanding the examination may show to be necessary or expedient.

622. (1) The agents of the contending parties duly informed by t he au tho rit y o r perso n request ed to take the examination sh all attend on the day and at the place appointed for the examination; and it shall be the duty of the agent of th e party pr oduc in g the evidence to bring with him the witness to be examined; t h e examination shall be reduced into writing, signed or marked by the witness and signed by the examiner.

(2) The provisions of sub-article (1) shall be duly stated in the letter of request, which shall also contain a request to the effect that the said authority or person will transmit the examination, when completed, to the Minister responsible for justice, who shall cause it to be forwarded to the court.

Evidence by affidavit of witness residing abroad. Added by:

XXIV. 1995.234.

622A. (1) Notwithstanding the provisions of articles 613 to 622, where the evidence of a witness residing outside Malta is required, and such person has m a de an affidavit about facts within hi s knowledge before an authority or other person who is by the law of the country where the witness resides empowered to administer oaths, or before a consular officer of Malta serving in the country where the witness resides, such affidavit duly authenticated may be produced in evidence before a court in Malta; and the provisions of articles 623, 624 and 625 shall apply to such affidavits.

(2) The affidavit so obtained shall be served on the opposite party or parties, and any party to the proceedings desiring to cross- examine such a witness shall apply to the court for the examination of such witness by letters of request not later than twenty days from the service of the affidavit; and the provisions of this Code relative to lett ers o f req u est sh al l ap pl y wit h su ch mo di ficati ons and adaptations as may be necessary.
(3) If no application is made as aforesaid no cross-examination of the witness shall be allowed unless the court for a good reason otherwise directs; and the affidavit shall be taken into consideration notwithstanding the absence of cross-examination.
(4) Notwithstanding the foregoing provisions of this article, if the parties agree, and the court deems it proper so to act, the court may make such other provisions concerni ng th e conduct of the c r oss-examination as may be a p propriate according to
circumstances.

622B. Without prejudice to the provisions of article 622A, the cour t may, if i t d eem s it pr op er so to act, allow for the audio- recording or for the video-recording of any evidence required from a witness as aforesaid, in accordance with such codes of practice as the Minister responsible for justice may, by regulations, prescribe.

623. When the court shall have received the examination, or if the authority or person requested to take the examination shall have reported that it was not possible to take the same, either because the wit n ess was no t p r od uced, or for any oth e r cau se, o r i f , in th e opinion of the court, having regard to the distance of the place and to all other circumstances, sufficient time has elapsed without the examination having been received, it shall be lawful for the court, of its own motion or upon the application of the party interested, to order that the cause be set down for hearing, tried and determined.

624. (1) The examination taken in accordance with the provisions of articles 613 to 620 inclusive, may be produced as evidence not only in the court of first instance and in the appellate court, but also in the appell a t e court only, whene v er the exam in ati on, alt hou gh ordered by a decree of the court of first instance, shall have been received after the cause has passed to the appellate court.

(2) If the cause in which the examination was ordered has terminated and has subsequently been re-instituted in terms of law, the examination may also be produced both before the court of first instance and before the appellate court.

Audio-recording or video-recording of evidence.

Added by:

XXXI. 2002.159.

Resumption of trial.

Amended by:

XXIV. 1995.235.

Production of evidence taken upon letters of request. Amended by: XXIV. 1995.236.

625. (1) The depositions of witnesses taken in the manner provided in articles 606, and 613 to 624, shall be read at the trial of the cause, if at the time of such trial, the witnesses who had been so examined be dead, or unable to attend, or kept out of the way by means of the procurement of the opposite party, or absent from Malta.

(2) Such depositions, although taken during the pendency of the cause before the court of first instance, may be made use of also before the appellate court, provided the impediment referred to in this article continues to exist.

Reading of depositions in court. Amended by: XXII. 1976.4.

626. (1) It shall be lawful for the court, in making an order of re fe re nc e, t o e mp o wer th e r ef e ree to examine witne sses and to administer oaths.

(2) Any witness examined by the referee may, by leave of co urt , b e ag ai n pr odu ced b e fo re the court, and it shall a l so be lawful for the court of its own motion to order the production of any such witness.

Examination of witnesses by referee. Amended by: IX. 1886.95; XXXI. 1934.58.

Production before court of witnesses heard by referee.

Sub-title II

OF DOCUMENTARY EVIDENCE

Documents requiring no proof of authenticity other than that which they bear on the face of them. Amended by:

L.N. 4 of 1963; XI.1973.377; XXII. 1976.4; XXIV. 1995.237; XXIV. 1995.357.

Cap. 234.

627. The following documents shall be admissible in evidence without the necessity of any proof of their authenticity other than that which appears on the face of them, and shall, until the contrary is proved, be evidence of their contents:

(a) the acts of the Government of Malta, signed by the Minister or by the head of the department from which they emanate, or in his absence, by the deputy, assistant, or other officer next in rank, authorized to sign such acts;
(b) the registers of any department of the Government of
Malta;
(c) all public acts signed by the competent authorities, and contained in the Government Gazette;
(d) the acts of the Government of Malta printed under the authority of the Government and duly published;
(e) the acts and registers of the courts of justice and of the ecclesiastical courts, in Malta;
(f) the certificates issued from the Public Registry Office and the Land Registry;
(g) the sea-protest made under the authority of the Civil
Court, First Hall;
(h) the documents mentioned in article 68, in article 95(3), in article 227 and, in so far as it applies article 227, in article 274 of the Merchant Shipping Act, as provided in the said provisions.

Acts of foreign Governments, etc. Amended by:

XXII. 1976.4.

Acts requiring proof of authenticity. Amended by: XI.1973.377.

628. The acts of any foreign Government, or of any department of a foreign Government, or of foreign courts of justice, or of any foreign establishment, authenticated by the diplomatic or consular r epresentativ e of t he Gover nmen t of Malta in the cou ntry fr om which they emanate, or by a person serving in a diplomatic, consular or other foreign service of any country which by arrangement with the Govern m e nt of Malt a has u ndertaken to represent this Government’s interests in that country, or by any other competent authority in the country from which they emanate, shall al so be adm issib le as ev idence in the same m an ner as the documents mentioned in the last preceding article.

629. The following documents are admissible and shall, until the contrary is proved, be evidence of their contents, provided their authenticity be proved:

(a) the acts and registers of any establishment, or public body, authorized or recognized by law or by the Government;
(b) the parochial acts and registers relative to births, marriages and deaths, and the dispositions made
according to law in the presence of a parish priest; (c) the acts and registers of notaries public in Malta;
(d) the books of traders kept according to law, only with regard to any agreement or other transaction of a commercial nature;
(e) the books of public brokers kept according to law, with regard to anything which may have taken place between contracting parties in commercial matters;
(f) the documents mentioned in article 134(3), in article
176(2) and in article 190(6) of the Merchant Shipping
Act, as provided in the said provisions.

Cap. 234.

630. The acts and registers of notaries public of other countries, au thenti cat e d in the m a n n er p r ovi ded in articl e 628, shall be admissible and shall be evidence of thei r con tents, in the sam e manner as the acts mentioned in article 627.

631. The books of traders and ships’ books shall constitute evidence against the traders themselves or the masters or owners of the ships, notwithstanding that such books are not kept according to law.

632. (1) Any declaration made by a party against his interest, or an y ot her writ ing contai ning any ad mi ssio n, agreem ent, or obligation is admissible as evidence.

(2) Any writing, whether printed or not, and any inscription, seal, banner, instrument or tool of any art or trade, tally or score, map, sign or mark, which may furnish information, explanation or ground of inference in respect of the facts o f the suit, are admissible as evidence.

Acts and registers of foreign notaries.

Traders’ books, etc., to constitute evidence against traders, etc.

Declarations against interest, etc.

Material objects.

633. Any act which, by reason of the incompetence or incapacity of the officer by whom it was drawn up, compiled, or pu blished, or which, owing t o the absence of some formal ity prescribed by law, has not the force of a public ac t, shall be admissible as evidence as a private writing between the parties, if the parties have signed or marked the same, or if it is proved that such act has been drawn up or signed by some other person acting on their instructions.

634. (1) A person against whom any paper apparently signed by hi m is produ ced, is b ou nd to d eclare p osit iv ely wh eth er th e w r iting o r si gnat u re i s hi s o w n or n o t, and in defau lt of such declaration, such writing or signature shall, until the contrary is proved, be deemed to be his own.

(2) Any signature or mark attested by an advocate, a notary or a legal procurator shall, unless the contrary is proved, be deemed to be genuine if in the attestation it is declared by the advocate or notary or leg a l procurat or that such signat u re o r m a rk was subscribed or set in his presence and, where the person cannot sign his name, in the presence of two witnesses whose signature appears on the act, and that he has personally ascertained the identity of the persons setting such signature or mark.

Defective public act which may be admissible in evidence as private writing.

Rules of evidence as to signatures or marks.

Amended by: IX. 1886.96;

XV. 1913.128; XII. 1924.5;

II. 1947.2;

XV. 1983.10;

XXI. 1993.87;

XXIV. 1995.238.

any si gnature or m ark att ested by a pari sh priest i n the m anner provided in sub-article (2) shall also, unless the contrary is proved, be deemed to be genuine.

Modes of proving handwriting.

635. Where it shall be necessary to ascertain the handwriting of any person by whom a document has been written or signed, such proof may be made -

(a) by the person who wrote or signed the document acknowledging his own handwriting;
(b) by means of witnesses who actually saw the person write or sign the document;
(c) by means of witnesses who, although they have not seen the person write or sign the document, are acquainted with his handwriting;
(d) by the comparison of handwritings, or by other circumstances or presumptions;
(e) by means of experts in handwriting, in cases of writings difficult to verify.
Copies. 636. (1) Authentic copies of the documents mentioned in articl e s 627 , 628 and in arti cle 6 29( a ), ( b ), ( c ) and ( e ) ar e admissible as evidence.

Authenticity thereof.

(2) Copies shall be deemed to be authentic, when they are made in the form prescribed by law by the officer by whom the original was received or is preserved, or by the person lawfully authorized for the purpose.

Probatory force. (3) Authentic copies shall be evidence to the same extent as the originals.

Actio ad exhibendum. Amended by:

XI. 1859.29,30; VI. 1880.27;

XV. 1913.129;

II. 1940.12;

XXIV. 1995.239.

Sub-title III

OF THE DEMAND FOR THE PRODUCTION OF DOCUMENTS

637. (1) It shall be lawful to demand the production of documents which are in the possession of other persons -

(a) if such documents are the property of the party demanding the production thereof;
(b) if such documents belong in common to the party demanding their production and to the party against whom the demand is made;
(c) if the party demanding the production of the documents, although he is not the owner or a co-owner thereof, shows that he has an interest that such documents be produced by the other party to the suit;
(d) if the person possessing the documents, not being a party to the suit, does not declare on oath that, independently of any favour for either side, he has special reasons not to produce the documents;
(e) if the documents are public acts, or acts intended to constitute evidence in the interest of the public in general.
(2) It shall be lawful for the court to order the production only of such part of books or other documents as relate to the matter in issue.
(3) It shall not be lawful to demand the production of any exempt document which forms part of any correspondence of any civi l, mil itary, naval or air forc e dep a rt ment or o f any repo rt belonging to any such department.
(4) For the purposes of sub-article (3), a document is an exempt document if -
(a) disclosure of the document would be contrary to the public interest for the reason that the disclosure -
(i) would, or could reasonably be expected to, cause damage to -
(a) the security of Malta;
(b) the defence of Malta; or
(c) the international relations of Malta; or
(ii) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of Malta;
(b) it is a Cabinet document, that is to say -
(i) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;
(ii) an official record of the Cabinet;
(iii) a document that is a copy of, or of a part of, or contains an extract from a document referred to in sub-paragraphs (i) and (ii); or
(iv) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was published;
(c) it is a document which would disclose matters in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purpose of the deliberative processes involved in the functions of a Ministry, Government department, authority, corporation or parastatal entity;
(d) it is a document that would, or could reasonably be expected to -

Privileged documents.

breach, or possible breach, of the law, or prejudice the enforcement or proper administration of the law in a particular instance;
(ii) disclose, or enable a person to ascertain the existence or identity of a confidential source of information; or
(iii) endanger the life or physical safety of any person;
(e) it is a document that would or could reasonably be expected to -
(i) prejudice the fair trial of a person or the impartial adjudication of a particular case;
(ii) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law, the disclosure of which would, or would reasonably be likely to, prejudice the effectiveness of those methods or procedures; or
(iii) prejudice the maintenance or enforcement of lawful methods for the protection of public safety;
(f) there is in force any law applicable to information of a kind contained in the document and prohibiting persons referred to in the law from disclosing information of that kind.
Cap. 9. (5) Saving the provisions of article 518 of the Criminal Code it shall not be lawful to demand the production of any procès-verbal, record of inquiry, or other document relating to criminal matters, unle ss such p roc ès -v er b a l , r e cord of inqu iry, or d o cu men t b e deposited in the registry.
(6) Where the Prime Minister is satisfied that the disclosure of the existence or contents of any document referred to in sub-article (4) would be contrary to the public interest for any reason therein stated, he may sign a certificate to that effect specifying that reason, and such a certifi cate, so long as it rem a ins in force, establishes conclusively that the document is an exempt document and where such a certificate is produced it shall constitute final and conclusive proof that the document is one as is referred to in sub- article (4) and is an exempt document in terms of sub-article (3), and no court shall have jurisdiction to enquire thereon.

Documents kept by administrator presumed to

belong to person whose estate he

administers.

638. (1) Any person whose affairs are administered by another perso n , sh al l be d eem ed to be the owner of t h e book s or o t her do cu ments kept b y t h e ad min istr at or in th e di schar g e of his functions.

(2) Documents relating to any succession, partition, or p a rtn e r s hip , o r t o the affairs of an y bank rup t debt or, sh all be deemed to be common property.
(3) It shall rest with the court to decide as to the interest of the party demanding the production, regard being had to the nature of the case and to the nature of the document the production of which is demanded.

Documents relating to successions, etc. to be deemed common property.

Court to decide as to interest of party demanding production of documents.

639. The demand for the production of documents shall state the nature of the documents, and all the particulars which may be known to the party making the demand.

640. Where the demand for the production of documents is made by one contending party against another, it shall be made in the same manner as the demand for a reference to the oath of the op posi t e part y; an d w h ere such d e m a nd is m a de aga i nst t h i r d parties, it shall be made by application or in the subpoena to give evidence as witness.

641. In all cases, the party demanding the production of the document must prove that the document is in the possession of the person from whom the production is demanded.

642. The production of documents may be demanded at any stage of the cause, so long as evidence may still be adduced.

643. It shall be lawful for the court to consider the contents of a document to be as averred by the party demanding its production, if the opposite party, notwithstanding the order of the court, refuses to produce such document.

Contents of demand for production of documents.

Form of demand for production of documents. Amended by: XXIV. 1995.240.

Proof of possession of documents.

Time in which demand for production of documents may be made.

Indirect proof arising from default of production.

Sub-title IV

OF REFEREES

644. The proof by means of a referee or referees is ordered on the demand of the parties or one of them, or by the court of its own motion.

645. (1) The court shall not appoint a referee solely for the pu rp ose of examin in g wi tn esses on oath and taking do wn their depositions in writing and establishing the relevant facts.

(2) In the decree appointing the referee, the court shall - (a) state the object of the reference;
(b) fix the day and time when the referee is to conduct an
inspection in faciem loci where necessary;
(c) give directions for the guidance of the referee in the execution of his task.
(3) The court may at any time, at the request of the registrar or

Order of reference.

Amended by:

XXIV. 1995.241.

Contents of order. Amended by: XII.1985.14. Substituted by: XXIV. 1995.242.

such time as sh all be specif i ed i n that ord e r. I n case of no n- c o mpliance with the court’s or der, t h e referee shall wi thout prejudice to any other proceedings which may be instituted against him be guilty of contempt of court.
(4) The court may order the referee to attend for the hearing of the trial and to put to the witnesses any questions he may deem necessary or relevant to enable him to complete his report.
(5) Where affidavits have been filed in the registry of the court, the referee shall be served with a copy of such affidavits before the hearing.

Appointment of referee. Amended by: XXXI. 1934.59. Substituted by: XXIV. 1995.243. Amended by: XVII. 2003.20; X. 2004.20.

646. (1) Where the parties agree on the submission of a name of a referee, the court shall appoint the referee agreed upon by the parties.

(2) Where the parties fail to agree, the court shall appoint a referee of its own choice.
(3) No social worker or psychologist who has already provided services to a party to a suit including as an ex parte expert witness according to the provisions of article 563A may be appointed as a referee.

No person may have more than two references at the same time. Added by:

IV. 1934.2. Amended by:

XV. 1940.2; XXIV. 1995.244.

647. (1) No person may be appointed as a referee in any cause or matter if such person has already two references upon neither of which he has yet filed his final report; and any appointment made in violation of this provision shall be null and void:

Exceptions. Provided that the provisions of this article shall not apply -

(a) in any cause or matter which requires special technical knowledge if the number of persons possessing such special technical knowledge is very limited; or
(b) where the necessity arises of referring to the same referee the consideration of further questions raised in the same cause or matter;
(c) to the appointment of additional referees in accordance with the provisions of this Code.
In the case provided under paragraph (a), the court shall in the order o f reference st at e the r easons for appoin ting t h e person mentioned in the order.

Book of references.

Challenge of referees.

Good cause for challenge.

(2) The registrar shall keep a record of any order of reference made by th e cour t stating the date of the or der and the date on which the referee shall have filed his report.

648. A referee may be challenged by any of the parties on good cause being shown to the court.

649. Repealed by: XXIV. 1995.246.

650. Repealed by: XXIV. 1995.246.

651. Repealed by: XXIV. 1995.246.

652. Repealed by: XXIV. 1995.246.

653. A referee may be challenged for good cause at any time unt il h e has fil e d hi s rep o rt , provid e d t h e p a rty m a king th e challenge declares upon oath that he was not aware of such cause at the time of the appointment, and that he never appeared before the referee, nor performed any act before him, from the time when he became aware of such cause.

654. Challenges for any cause existing and known at the time of the appoint m ent of the referee shall be made orally during the hea r ing; and challenges for an y c a use su perv eni n g after th e appo intment , or w h ich, altho ugh exi s t i ng previou s l y to the app o int m en t, was un kno wn, shall be made by an ap pli c atio n demanding the appointment of another referee in his stead.

655. (1) Upon any such application, the court shall make an o r der suspen ding the pro c eed i ngs before t h e referee and shal l appoint a day for the hearing of the grounds of the objection.

(2) The decree of the court allowing or disallowing the objection shall not be subject to appeal.
(3) Where the court allows the objection, it shall in the same decree appoint another referee.

Time for making peremptory challenge.

Power of court. Challenge of

referee named by

court.

Amended by:

IV. 1862.12.

Time for challenging referee for good cause. Amended by:

XXIV. 1995.247.

Mode of making challenges for cause.

Hearing of grounds of objection. Amended by:

XV. 1913.130; XXIV. 1995.248.

Decree not subject to appeal.

Appointment of another referee.

656. The decree making the order of reference shall be served by order of the court on the referee.

657. (1) Any referee who declines the appointment shall give notice in writing of his refusal to the registrar, within two days from the service of the decree.

(2) Failing such notice, the referee shall be deemed to have accepted the appointment.
(3) The registrar, upon recording the refusal, shall forthwith by letter call upon the parties to appear on a date to be fixed by the court in order that another referee may be appointed in case the refusal is accepted by the court.

Service of order of reference on referee.

Amended by: XV. 1913.130.

Substituted by: XXIV. 1995.249.

Declination of appointment. Amended by: XV. 1913.130.

Tacit acceptance. Duties of registrar.

658. If the referee appointed by the court is a person duly authorized by the Government to act as an expert, or to exercise any trade or profession, and such referee shall, without reasonable excuse, refuse to accept the appointment, it shall be lawful for the court which made the appointment to interdict him from acting as referee in any of the superior or inferior courts for a period not

Penalty for certain persons refusing without reasonable excuse to act as referees.

Amended by: XV. 1913.130.

Penalty for default of referee to carry out reference. Amended by:

XV. 1913.130.

Submissions by parties to referees. Amended by:

XV. 1913.130.

Sittings of referees.

Amended by:

XV. 1913.130.

Extension of time to carry out reference. Amended by:

XV. 1913.130; XXIV. 1995.250.

Penalty for delaying or refusing to file report without reasonable excuse. Amended by:

XV. 1913.130.

Summoning of witnesses before referees. Penalty for non-attendance of witnesses. Amended by:

XV. 1913.130.

exceeding six months.

659. Any referee who, after having accepted the appointment, shall, without reasonable excuse, fail to attend on the day and at the time fixed for the carrying out of the reference, may be condemned in costs and damages.

660. The parties or their advocates or legal procurators, as the ca se may be , may, in the course of the proceedings before the referee, make such submissions as they may consider to be in their interest, and a mention thereof shall be made by the referee in his report.

661. If for the carrying out of the reference one sitting is not sufficient, the referee may hold other sittings on such days and at such time as he may fix.

662. If the referee is for any just cause unable to carry out the reference within the appointed time, he may, before the expiration of that time, apply for an extension provided that the court may for go od an d suf f icien t gr ou nd s, t o be r e co rd ed, gr an t a fu rt her extension or extensions.

663. If any referee shall, without reasonable excuse, delay the r e por t or r e f u se to file the report within th e p r escribed ti me, original or enlarged, his appointment shall ipso facto lapse and the court shall ex officio appoint another referee in his stead; in which case he shall not be entitled to any fee or reimbursement and shall be liable for costs and damages.

664. (1) The court shall issue writs of subpoena to witnesses to appear before the referee, and if any such witness fails to attend, the court shall, upon a report in writing by the referee, proceed in the manner provided in article 575.

(2) The provisions of article 569(2) shall apply to such writs.

Contents of report.

Amended by:

XV. 1913.130;

XIX. 1965.16;

XXIV. 1995.251.

665. (1) The report of the referee shall state the inquiries made and his findings together with the grounds of such findings.

Annexes to report. (2) The documents produced by the parties and the depositions of the witnesses shall be annexed to the report.

When plans and models may be annexed to report.

Signing of report by referee.

Report to be legibly written.

(3) The report shall not be supplemented by plans or models, unless the court so directs or the parties give their consent thereto.
(4) The report shall be signed by the referee or referees as the case may be unless otherwise provided by the court.
(5) The report shall be clearly and legibly typewritten or written in ink.

Taxation of fee due to referees. Amended by:

XV. 1913.130; XXIV. 1995.252.

666. (1) Before the day appointed for the publication of the report, or on the sam e d a y, but before the cause i s called, the referee shall present his report unsealed to the r egistrar for the taxation of his fees in accordance with the Tariffs in Schedule A annexed to this Code.

(2) Except where otherwise provided, the referee shall not be required to publish his report until the fee taxed by the registrar has been paid to him or deposited with the registrar, and the registrar shall not disclose to any person any part of the report, until the fee has been paid or deposited as aforesaid, under penalty of paying to the referee the fees due to him.
(3) Upon the payment or deposit as aforesaid, the registrar shall insert the report in the record of the cause and such report shall thereupon be accessible in the same manner as other parts of the record.

Report not accessible until fees are paid.

Insertion of report in record.

667. (1) Any referee or party may appeal from a taxation made under the last preceding article to the court by which the referee was appointed, whatever the amount taxed or claimed, within eight days from the day mentioned in article 672 or, where the attendance of the referee has been dispensed with as provided in that article, from the day on which the referee or the contending parties shall have been notified of the taxation by letter of the registrar.

(2) Pending the decision of the cause in which the order of reference was made, such appeal may be entered by means of a note.
(3) After the decision, such appeal shall be by application and shall be heard by the court summarily.
(4) If the appeal appears prima facie justified, the court shall, after hea r ing the parties, direct t h e r e gi st ra r to ma ke a fr esh taxation.

Appeal by referee or party from taxation of fee. Time for appeal. Amended by:

XV. 1913.130; XXI. 1934.60; XXIV. 1995.253.

Form of appeal.

Directions of court.

668. (1) The decree ordering the reference shall state the party b y wh om th e f e e of th e ref e r e e shal l p r o v i s io nall y be paid o r deposited.

(2) When the reference is required by the plaintiff to prove some fact upon which he relies for his claim, the fee of the referees shall provisionally be paid or deposited by the plaintiff.
(3) In all other cases, it shall be in the discretion of the court to determine whether, and if so, in what proportion, each of the parties shall provisionally bear a part of such fee, regard being had to the respective interest of the parties to the action.

By whom fee of referee is to be provisionally paid. Amended by:

IV. 1862.13; XV. 1913.130;

XXIV. 1995.254.

669. The court may in the decree appointing the referee or at any time before the referee presents his report to the registrar, order the party by whom the fee is to be provisionally paid, to deposit with the registrar, within such time as the court shall direct, a sum which, in the opinion of the court, approximately corresponds to the fee which will be due to the referee.

670. The court may decide the cause without the reference or independently of the evidence produced before the referee -

(a) where the reference was not carried out within the original or extended time, for some cause attributable to the party in whose interest the order of reference was made; or

Court may order deposit of fee due to referee. Amended by:

IV. 1862.13; XV. 1913.130. Substituted by: XXIV. 1995.255.

When court may decide cause without the reference. Amended by:

IV. 1862.13; XV. 1913.130.

Substituted by: XXIV. 1995.256.

(b) where the fee taxed in favour of the referee as provided in article 666 has not been paid or deposited; or
(c) where the deposit mentioned in the last preceding article has not been made.

Referee to divide fee in cases where parties are admitted to sue or to defend with the

benefit of legal aid.

Amended by:

XV. 1913.130;

XXIII. 1971.23;

XXIV. 1995.257.

671. (1) Where one of the parties to an action has been admitt ed to sue or to defend with the benefit of legal aid, the referee shall be entitled to such part of the fee as may have been paid by the party not appearing with such benefit:

Provided that the referee shall be entitled to claim the other part of the fee if the party not appearing with the benefit of legal aid is condemned in costs.
(2) Where both parties appear with the benefit of legal aid, the referee, if he belongs to the class of persons mentioned in article
658, shall publish his report, although he may not have been paid the fee; and in the case of other referees, the fee will be paid by
Government.

Publication of report. Amended by: IV. 1862.14; XV. 1913.130;

XXIV. 1995.258.

672. (1) On the day appointed for the publication of the report, the referee shall attend before the court for the object of publicly reading it out and confirming it on oath, unless his attendance is dispensed with by the court.

Oath. (2) The oath shall be administered to the referees by the registrar.

Time for examination of report. Amended by: XV. 1913.130;

XXIV. 1995.259.

Additional referees. Substituted by: XXIV. 1995.260.

673. The court shall allow the parties time to consider the report and to make their submissions thereon.

674. (1) It shall be lawful for the court, on the demand of any of the parties, to proceed to the appointment of additional referees who shall make their report on reaching a majority decision on the subject of the reference.

(2) Where the findings have been arrived at by a majority of votes, the report shall include a mention of the fact that there has been a dissenting member, what constituted the dissent as well as the grounds thereof.
(3) Subject to the provisions of this article, the provisions of this Sub-title shall mutatis mutandis apply to additional referees.

Average of amounts assessed by referees.

When additional referee cannot be appointed.

675. Where the subject-matter of the reference is a valuation or an assessment, it shall be lawful for the court, in either of the cases referred to in the last preceding article, on the demand of any of the parties, to appoint two additional referees; and upon their report, to fix an average of the amounts found in all the disagreeing reports.

676. Repealed by: XXIV. 1995.261.

677. (1) The demand for the appointment of additional referees shall be made by means of a note to be filed within ten days.

(2) Such time shall commence to run from the date of the publication of the report. If the referees have been dispensed from attending before the court according to the provisions of article
6 72(1), su ch ti m e shall commen c e to run fro m the d a te of the receipt by the party or his legal procurator of a notice signed by the
registrar, stating that the report has been published.

Time for making demand for additional referees. Amended by:

XXXI. 1934.61. Substituted by:

XXIV. 1995.262.

678. (1) The additional referees, whatever their number, shall be appointed by the court, unless the parties agree as to the referees to be appointed.

(2) The additional referees may be challenged for good cause.

Appointment of additional referees.

Challenges for good cause.

679. Where authority has been granted to the referees to receive docu m ents or to examine witnesses, no further docum ents or witnesses on the subject-matter of the reference shall be admissible before the court, except in the cases as provided in artic l e

150(1)(a), (b), (c), (d) and (e) and in article 208(1)(a), (b) and (d).

680. (1) The referees may be examined and cross-examined on their report in the same manner as witnesses.

(2) The provisions of articles 594 and 595 shall apply to the answers given by the referees.

Inadmissibility of fresh documents or witnesses after the filing of the report. Amended by:

XV. 1913.130.

Examination of referees. Amended by: XV. 1913.130; XXXI. 1934.62.

681. The court is not bound to adopt the report of the referees against its own conviction.

682. In an appellate court, no reference may be ordered, except in the following cases:

(a) where there was no reference made in the court below and no express renunciation of such reference was made;
(b) where the subject-matter of the reference is, wholly or in part, different from that of the reference made in the court below, or in respect of which there was a renunciation;
(c) where the directions given to the referee by the court below were, in the opinion of the appellate court, defective or insufficient;
(d) where the appellate court is of opinion that the report is not so complete as to enable it to decide the cause:
Provided that nothing in this article shall operate so as to bar the appellate court from re quiring fu rt her elucid atio ns fr om th e referees appointed by the court below.

Court not bound to adopt report.

Added by:

XV. 1913.130.

When reference is permitted before appellate court. Added by:

XV. 1913.130.

Sub-title V

OF INSPECTION IN FACIEM LOCI

Inspection in faciem loci.

683. It shall he lawful for the court, on the demand of the parties or of its own motion, to order an inspection of the place, whenever it may deem it expedient for the disposal of the cause.

Contents of decree. 684. The court shall, in the decree ordering an inspection of the place, appoint the day and time for the inspection, and may also order one referee or three referees to attend.

Service of decree on referees. Amended by: XXIV. 1995.263.

Deputing judicial assistant for inspections outside jurisdiction of court.

Amended by: XXXI. 2002.160.

Presence of one member of court to be sufficient.

Court to repair to place at the appointed time.

Attendance of parties.

Parties may be represented by advocates, etc.

685. The decree shall be communicated to the parties and to the referee or referees in the manner provided in and for the purposes of article 656.

686. Where an inspection outside the jurisdiction of the court is necessary, the court may in the decree delegate a judicial assistant to hold the inspection and to perform all acts relative thereto.

687. Repealed by: XXIV.1995.264.

688. (1) On the day and at the time appointed, the court shall repair to the place of inspection.

(2) The contending parties may, and, if their attendance is required shall, be present at such inspection.
(3) In all cases, the parties may he represented or assisted by their advocates or legal procurators.

Record of inspection.

Directions to referees.

Examination of witnesses.

Costs of inspection.

689. A record of the inspection shall he kept by the registrar in the form of a procès-verbal.

690. The court shall, whensoever it may deem it necessary, order the referee or referees to d r aw u p pla n s and to s t at e th e measurements, the distance, and any other thing which the court may consider conducive to the object of the inquiry.

691. It shall be lawful for the court either to examine the witnesses at the place of inspection, or to reserve examining them during the hearing in court.

692. As regards the payment or deposit of the expenses of the inspection, the provisions respecting proof by referees shall apply.

Sub-title VI

OF THE PROOF BY ADMISSION OR BY REFERENCE TO THE OATH OF THE OTHER PARTY

693. Any admission of a fact whether written or verbal, made in or out of court, may be received in evidence against the party who made it.

694. (1) An extrajudicial admission is no evidence except against the party who made it.

(2) An admission made upon a reference to the oath of one of the parties may be received in evidence of a fact even against the other parties to the suit.
(3) In all cases, only such part of an admission as the court may deem worthy of credit shall constitute evidence.

Admission made in or out of court.

Probatory force of admissions made out of court. Amended by:

IV. 1862.15.

Admission made upon reference to oath of party.

Part of admission worthy of credit to constitute evidence.

695. (1) Any declaration or statement made, whether viva voce o r in w r i tin g, b y an y adv o cate or l e g a l pr ocur ato r , can be withdrawn by a note at any stage of the suit, even in the appellate court, before judgment is given, provided it shall not be proved that the advocate or legal procurator made the declaration or statement with the special authority of the party.
(2) The presentation of an act in court by the party personally, shall not of itself, without other circumstances, be evidence that the declaration or statement of fact was made by the advocate or legal procurator with the special authority of the party.

Declarations, etc., made by advocate, etc., can be withdrawn at any time before judgment.

Mere presentation of act by party not to constitute proof of authority by party to advocate, etc.

696. (1) In the superior courts and in the Court of Magistrates (Gozo) in its superior jurisdiction, a plaintiff who intends to furnish evidence by a reference to the oath of the defendant shall give him notice thereof in the written pleading commencing proceedings.

(2) Where the plaintiff omits to give the defendant such notice as provided in sub-article (1), he shall, at least two days before the day appointed for the hearing of the cause, present a note in the registry in order that the defendant may be informed, by letter of the registrar, that reference to his oath is required.
(3) The letter shall be drawn up by the plaintiff and shall he filed simultaneously with the note.

Reference to oath of defendant. Amended by:

XV. 1913.131; XXXI. 1934.63;

VIII. 1990.3; XXIV. 1995.265.

697. The provisions of sub-article (1) of the last preceding ar ticle shall apply in the case wher e the def e n d ant requires reference to the oath of the plaintiff.

Reference to oath of plaintiff. Amended by:

XV. 1913.132; XXIV. 1995.266.

Non-appearance of party to whose oath reference is required.

Amended by:

XV. 1913.133,134;

XXXI. 1934.64;

XXIV. 1995.267.

698. (1) If the party, to whose oath reference is required, fails to app ear o n the day appointed for the trial, the party referring shall, upon the issues being settled, make a declaration to the effect that he intends making such reference and shall present questions and statements which shall be formulated in an affirmative manner as to require an affirmative answer which shall be sealed by the registrar.

(2) If the party to whose oath reference is made fails to appear on the day to which the court shall adjourn the trial of the cause, w ithou t go od cau se b e ing sh own for his n on-ap pearance, the questions shall be deemed to be admitted and accepted.

In the superior courts, questions to be in writing. Amended by:

VIII. 1990.3; XXIV. 1995.268.

Approval of questions by court.

699. (1) In all courts of civil jurisdiction, the questions shall be made in writing.

(2) The questions shall, during the hearing of the cause, be presented to the court for approval.

Written questions to be clear, etc. Amended by: XXIV. 1995.269.

Exclusion of superfluous questions.

700. (1) The questions shall be clear, concise and numbered, and signed by the advocate or legal procurator, as the case may be, or by the party referring.

(2) In all cases, questions which are superfluous or which the court may deem it fit to reject, may be cancelled or rejected.

Affirmative or interrogative form of questions.

Demand for reference to oath in inferior courts. Amended by:

XV. 1913.135; XXIII. 1971.24;

XIII. 1983.5; XII. 1985.15;

VIII. 1990.3; XXIV. 1995.271; L.N. 407 of 2007.

Non-appearance of party to whose oath reference is required.

701. Repealed by: XXIV. 1995.270.

702. (1) In the Court of Magistrates (Malta) and in the Court of Magistrates (Gozo) in its inferior jurisdiction, the demand by the plaintiff for the reference to the oath of the defendant shall be made in the notice referred to in article 171.

(2) If the reference is required by the defendant, the demand shal l be made oral ly, eit her befo re o r d uri ng t he hearing of the cause; and in the former case notice of such demand shall be given to the plaintiff.
(3) If the party to whose oath reference is required fails to appear on the day appointed for the trial -
(a) the questions as taken down by the court shall be deemed to be admitted, unless good cause is shown for his non-appearance, in any case other than cases for ejectment or eviction from immovable property, in which the claim before the court does not exceed the amount of five hundred and eighty-two euro and thirty- four cents (582.34);
(b) the court shall adjourn the trial to a date not later than fifteen days from the date of the sitting, unless the party making the reference renounces thereto, in any case for ejectment or eviction from immovable property or in any case in which the claim before the
court exceeds the amount of five hundred and eighty-two euro and thirty-four cents (582.34), and the questions as taken down by the court shall be deemed to be admitted if the party to whose oath reference is required, without good cause being shown for his non- appearance, fails again to appear on the day to which the court has adjourned the case as aforesaid.

703. The party to whose oath reference is made shall answer in terms of the questions.

704. (1) The provisions of article 2(e) of the Judicial Proceedings (Use of English Language) Act, shall mutatis mutandis apply to the answers to the questions in all courts.
(2) Such answers shall be certified by the registrar and shall form part of the record.

Replies to questions.

Taking of answers to questions. Amended by: XXXI. 1934.65;

II. 1940.13. Substituted by:

XXXII. 1965.8. Amended by: XXIV. 1995.272.

Cap. 189.

705. (1) It shall be lawful for the court to put or allow the party referring to put to the other party to whose oath reference is made any query which, although not included in the interrogatories, is connected with the subject-matter of the questions, or tends to elicit true and precise answers on the matter of the questions.

(2) The answers to any such queries shall also be taken down and certified by the registrar, and shall be inserted in the record.

Further queries.

706. (1) Where the party to whose oath reference is required is lawfully prevented from appearing in court, it shall be lawful for the co urt, on the demand of the other part y, to order th at the answers to the questions be taken, on the day and at the time to be stated in the order, at the place of abode of the party to whose oath reference is required, by a judicial assistant; and such order shall be served on the person or persons to whose oath reference is required. The party seeking the reference shall pay for such service, saving any ri gh t of re im bu rs ement thereof in terms of the eve n tual decision of the court.

(2) It shall be lawful for the opposite party and for the advocates or legal procurators to attend.
(3) The answers shall be taken down and signed at the end thereof by the judicial assistant.
(4) The provisions of article 606(4) and (5) shall apply in the case provided for in this article.

Deputing judicial assistant to take answers upon a reference to oath. Amended by:

XV. 1913.136; XXIV. 1995.273; XXXI. 2002.161.

Attendance of parties, etc.

Answers to be taken down and signed by judicial assistant.

Applicability of article 606(4) and (5).

707. (1) Where, in the same cause, reference is required to the oath of other parties in respect of whom there is not the impediment stated in the last preceding article, it shall be lawful for the court to order that the depositions of such other parties under the reference be taken, one after the other, on the same day, by a judicial assistant at the place of abode of the party in respect of whom there exists the impediment, imm ediately after the deposition of such party

Reference to oath of other parties not under impediment. Amended by:

XV. 1913.137; XXIV. 1995.274;

XXXI. 2002.162.

under the reference, and in the same manner as provided in that article; and such order shall be served on the person or persons to whose oath reference is required. The party seeking the reference sha ll pay for suc h se rvi ce, sa ving any right of reimbursement thereof in terms of the eventual decision of the court.
(2) In any case under this article, the oath may likewise be administered by a judicial assistant.

Before inferior courts reference to be taken by sitting magistrate. Amended by:

X. 1856.13; VIII. 1990.3;

XXIV. 1995.275.

Applicability of article 606(3), (4) and (5) where

party to whose oath reference is

required, is outside jurisdiction.

Added by:

IX. 1886.97.

Amended by:

XV. 1913.138.

Power to forbid presence of one party during deposition of another.

Reference to oath of party absent not allowed.

Deputing judicial assistant to take deposition upon reference of party who might die before day of trial. Amended by:

VIII. 1990.3; XXIV. 1995.277;

XXXI. 2002.163.

708. In the cases referred to in the last two preceding articles, if the cause is pending before the Court of Magistrates (Malta), or before the Court of Magistrates (Gozo) in its inferior jurisdiction, the reference shall be taken by the magistrate before whom the cause is pending.

709. In the cases referred to in articles 706 and 707, if the cause is pend in g in Malt a and t h e part y to who s e o a t h referen c e is required is i n the Island of Gozo or Com i no, or if the cause is pending in Gozo and the party to whose oath reference is required is in the Island of Malta, the provisions of article 606(3), (4) and (5) shall apply with regard to the person by whom the deposition under the reference is to be taken and the oath administered, as well as with regard to the person by wh om the expenses are to be prepaid.

710. Repealed by: XXIV. 1995.276.

711. It shall not be lawful to make reference to the oath of any party who is absent from Malta.

712. (1) Where any party to a cause pending in any of the superio r court s , or in the Court of Magistrates (Gozo) in it s superior jurisdiction, desires to make a reference to the oath of the other party and has reasons to fear that at the time of the hearing of the cause, such party might be dead or unable, through absence from the country, or sickness, to attend, it shall be lawful for the p a rt y re qui ring t h e referen ce t o dem a n d , b y mea n s o f an application, that a judicial assistant be deputed to take down the deposition on the reference in the manner laid down in articles 706 and 707, provided he presents, simultaneously with the application, th e qu est i o n s, an d the co ur t co nsid ers su ch q u esti on s to b e admi ssible; and if the court accedes to the party’s request as aforesaid, the order of the court shall be served on the person or persons to whose oath reference is required. The party seeking the reference shall pay for such serv ice, sav i n g an y r i gh t of reimbursement thereof in te rms of the eventual decision of the court.

(2) Where the impediment anticipated be that of absence, the court shall appoint the place where the deposition on the reference is to be taken.

713. Reference to the oath of the other party shall be competent i n all cases, w h et her bef o r e o r af ter t h e pr od uct i o n of o t h e r evidence, both before the first court and before the appellate court.

714. It shall not be lawful to refuse evidence by reference to the oath of the other party, even though no other evidence is available in support of the claim or defence in respect of which the reference is required.

715. (1) A reference to oath may be made in regard to the whole matter in issue, or to any part thereof, as well as in regard to any particular fact connected with the cause.

(2) Before the appellate court a reference to oath may be made in regard to facts not included in the questions presented before the court below; and it shall also be lawful for the appellate court upon a demand to that effect to order an explanation in regard to answers given before the court below.

Evidence by reference admissible at any stage of proceedings.

Evidence by reference may not be refused, even if no other evidence is available.

Subject-matter of reference.

716. (1) The party to whose oath reference is made may defer back the questions or any part thereof to the party referring.

(2) The provisions of this article shall not apply unless the matter relates to a factum proprium of the party referring.
For the purposes of this article, any act whatsoever in which the party referring participated or of which he has personal knowledge shall be deemed to be a factum proprium of such party, whether he ap pea r s i n t h e p r oc eed i n g s in h i s o w n n a m e or in th e na m e of others.

Power to defer back questions.

717. (1) Where the party to whose oath a reference is made, refuses to answer the questions or, in the cases provided under the last preceding article, fails to defer them back to the oath of his adversary, the questions shall be deemed to be proved in favour of the party referring.

(2) Where, in the cases allowed by law, the questions have been deferred back to the party refe rring and such party refuses to answer them, the questions shall be deemed to be proved against him.

Refusal of party to whom reference is made to answer or defer back questions.

Refusal of party referring to answer questions deferred back to him.

718. The party referring or deferring may not retract the questions, if the adversary declares that he is prepared to answer.

719. The party to whose oath a reference is made shall, if present at the hearing of the cause, forthwith declare whether he pr oposes to answer the questions , or to defer them back to the adversary.

720. Where the evidence produced is not of itself sufficient to establish the proof required, and the court is of opinion that such evidence, if supplemented by the oath of the party, would establish to its satisfaction the proof required, it shall be lawful for the court to require a suppletory oath.

Retracting of questions.

Party present in court to declare whether he intends answering or deferring back questions.

Suppletory oath.

Oath may be administered before or after judgment.

Judgment to fix time within which suppletory oath is to be taken.

721. The suppletory oath may be administered either during the hearing of the cause, or after the judgment if expressly ordered by such judgment.

722. The judgment ordering the suppletory oath shall fix the time within which such oath is to be taken.

Oath in litem. 723. (1) Where a party who has proved his case generally is, through the negligence or fraud of the opposite party, unable to prove the amount, or the quantity, in whole or in part, due to him, he shall be admitted, if the court deems it proper, to the oath in litem.

(2) The party may also be admitted to such oath, independently of any negligence or fraud of the opposite party, provided there are sufficient inferences in support of the alleged amount or quantity.

Party admitted to oath in litem to produce list of sums, etc., due.

724. The party applying to be admitted to the oath in litem, shall produce a list showing distinctly the sums or things due to him, and the amount or quantity in regard to which the oath is to be taken, together with a declaration to the effect that he is prepared to verify on oath t h e contents of such list, bot h as regards t h e existence as well as the amount or quantity of the sums or things stated therein.

Power of court. 725. The amount or quantity shown on the list shall be accepted by the court in so far as, having regard to all the circumstances of the case, it shall deem it just:

Provided that it shall be lawful for the court to require further elucidations and for such purpose to appoint one or more experts.

Applicability of article 606(3), (4) and (5).

Oaths to be administered by registrar. Amended by:

X. 1856.14; XV. 1913.140;

XXIV. 1995.278.

726. The provisions of article 606(3), (4) and (5) may also be applied in the case of any of the oaths referred to in articles 720 and

723, if the pa rty whose oath is re qu ired is residing outside the jurisdiction of the superior or inferior court by which the oath is ordained.

727. Saving the provisions of articles 706, 707 and 708 and of the last preceding article, the oaths referred to in the foregoing articles of this sub-title shall be administered by the registrar.

Title II

OF PLEAS

Sub-title 1

OF PLEAS GENERALLY

728. (1) Subject to the provisions of article 731 in actions i n st ituted by sworn appl ication, all pl eas w h ether dil a tory or touching the merits shall be raised in the sworn answer, as the case may be. Those pleas touching the merits shall be raised without prejudice to the dilatory pleas.

(2) No other pleas can be set up at a later stage; provided that the court may on an application by the defendant or respondent allow the setting up of additional pleas, if it is satisfied that there were valid reasons for not including them in the note of pleas or in the answer.

Pleas to be raised in sworn answer. Amended by:

XIII. 1964.22. Substituted by:

XXIV. 1995.279. Amended by: XXII. 2005.60;

L.N. 181 of 2006.

729. If the court deems it expedient, before proceeding further, to deal with the dilatory plea, the court may hear the merits so far as the same may affect the decision on the preliminary issue.

730. Any plea to the jurisdiction of the court or to the capacity of the parti e s, and any plea of compr o mise, arbi tration, re s judicata, prescription, or nullity of acts, shall be determined under a separate head, either before, or together with the decision on the merits.

731. The provisions of article 728 shall not apply to such pleas as by an express provision of this Code may be raised at any stage of the proceedings, or to pleas the reason for which arises during the trial.

732. (1) Saving always the provisions of this Code respecting the production of evidence, peremptory pleas may be raised even before the appellate court although they may not have been raised before the court of first instance.

(2) Nevertheless, the plea of desertion of a cause shall be d eemed to have been waived, if not rai s ed befo re any other peremptory plea.

Power of court to hear merits of case in order to dispose of preliminary

plea.

Certain pleas to be determined under separate heads. Amended by:

IX. 1886.98.

Pleas which may be raised at any stage of proceedings. Substituted by: XXIV. 1995.280.

Peremptory pleas.

Amended by:

IX. 1886.99.

Sub-title II

OF THE CHALLENGE OF JUDGES AND MAGISTRATES AND OF

SURROGATION

733. The judges may not be challenged, nor may they abstain from sitting in any cause brought before the court in which they are a p pointed to sit, except for a ny of th e reason s h e reinafter mentioned.

Challenge or abstention of judge. Amended by:

L.N.148 of 1975.

Grounds for challenge or abstention of judge. Amended by:

XLVI. 1973.108; XXIV. 1995.281;

IX. 2004.11; VII. 2007.22.

734. (1) A judge may be challenged or abstain from sitting in a cause -

(a) if he is related by consanguinity or affinity in a direct line to any of the parties;
(b) if he is related by consanguinity in the degree of brother, uncle or nephew, grand-uncle or grandnephew or cousin, to any of the parties, or if he is related by affinity in the degree of brother, uncle, or nephew, to any of the parties;
(c) if he is the tutor, curator, or presumptive heir of any of the parties; if he is or has been the agent of any of the parties to the suit; if he is the administrator of any establishment or partnership involved in the suit, or if any of the parties is his presumptive heir;
Provided that this shall not apply to any decision delivered by the judge which did not definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff;
(iii) if he has made any disbursement in respect of the cause;
(iv) if he has given evidence or if any of the parties proposes to call him as a witness;
(e) if he, or his spouse, is directly or indirectly interested in the event of the suit;
(f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge;
(g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge;
(h) if the judge or his spouse has a case pending against any of the parties to the suit of happens to be his creditor or debtor in such manner as may reasonably give rise to suspicion of a direct or indirect interest that may influence the outcome of the case.
(2) A judge may be challenged or abstain from sitting in a cause when he has previously taken cognizance of and expressed himself on the same merits of that cause when sitting as a judge in the Court of voluntary jurisdiction.

Abstention by judge. Written or oral declaration thereanent.

735. (1) Any judge being aware of the existence in his respect of any of the grounds of challenge mentioned in the last preceding article, shall make a declaration to that effect previously to the trial of the cause, either verbally in open court, in which case a record of such declaration shall be entered in the proceedings of the cause, or

in writing, in which case it shall be lodged in the registry before the day appointed for the trial of the cause, notice thereof being given to the parties.
(2) Nevertheless, it shall be lawful for the judge to hear and determine the cause if the parties shall expressly give their consent thereto, unless, in the particular circumstances of the case, he shall d e em i t p r oper t o abstain fro m sitt ing no twi t hstand ing such consent.

Judge may hear and determine cause, if parties give their consent thereto.

736. The existence of any of the grounds of challenge mentioned in article 734 shall not preclude the judge from signing, where necessary, any application, whether sworn or not, or warrant.

737. Any objection to a judge shall be raised by the parties in open court, and the reasons thereof shall be alleged and, where necessary, proved.

738. (1) Where the court consists only of one judge and such judge is objected to, he himself shall decide on the alleged ground of challenge, and no appeal shall lie against his decision, and he shall eith er abstain fro m si ttin g an d rul e t h at a surr ogation of another judge is required, or else proceed with the trial, as the case may be.

(2) Where the court consists of more than one judge, all the judges, including the one objected to, shall decide on the ground of challenge, and where there is any reason to doubt as to whether an alleged ground of abstention is a good ground or otherwise, all the judges, including the judge alleging such ground, shall decide on such ground.

Judge to sign applications or warrants despite being otherwise precluded from dealing with cause. Amended by:

XXII. 2005.61.

Objection to judge to be made in open court.

Decision on grounds of challenge or abstention.

739. The challenge of a judge shall not be admissible where the party raising the objection, if the plaintiff, has already submitted his claim at the trial, or, if the defendant, has already set up his pleas in defence, unless the ground of challenge shall have arisen su bsequen tly, or unless t h e party rai s i ng t h e o b jecti on, o r h i s advocate, shall declare upon oath that he was not aware of such ground, or that it did not occur to him at the time.

740. The provisions of this sub-title shall be applicable to magistrates of the inferior courts.

Sub-title III

OF PLEAS TO THE JURISDICTION

When objection to judge is not admissible.

Application of provisions to magistrates. Amended by: IV. 1905.2;

XV. 1913.141; XXIV. 1995.282.

741. It shall be lawful to plead to the jurisdiction of the court -

(a) when the action is not one within the jurisdiction of the courts of Malta;

Plea to the jurisdiction. Grounds of plea.

(b) when the action, although one within the jurisdiction of the courts of Malta, is brought before a court different from that by which such action is cognizable;
(c) when the privilege of being sued in a particular court is granted to the defendant.

Persons subject to jurisdiction of civil courts of Malta. Amended by:

XXII. 1976.4; VIII. 1981.7. Substituted by: XXIV. 1995.283. Amended by:

III. 2004.41.

742. (1) Save as otherwise expressly provided by law, the civil co ur ts of M alt a sh all h ave ju r isdi ct ion t o tr y and d ete rm in e a ll actio ns, wit hout an y di st inction or privi l eg e, con c ernin g th e persons hereinafter mentioned:

(a) citizens of Malta, provided they have not fixed their domicile elsewhere;
(b) any person as long as he is either domiciled or resident or present in Malta;
(c) any person, in matters relating to property situate or existing in Malta;
(d) any person who has contracted any obligation in Malta, but only in regard to actions touching such obligation and provided such person is present in Malta;
(e) any person who, having contracted an obligation in some other country, has nevertheless agreed to carry out such obligation in Malta, or who has contracted any obligation which must necessarily be carried into effect in Malta, provided in either case such person is present in Malta;
(f) any person, in regard to any obligation contracted in favour of a citizen or resident of Malta or of a body having a distinct legal personality or association of persons incorporated or operating in Malta, if the judgment can be enforced in Malta;
(g) any person who expressly or tacitly, voluntarily submits or has agreed to submit to the jurisdiction of the court.
(2) The jurisdiction of the courts of civil jurisdiction is not excluded by the fact that a foreign court is seized with the same cause or with a cause connected with it. Where a foreign court has a concurrent jurisdiction, the courts may in their discretion, declare defendant to be non-suited or stay proceedings on the ground that if an action were to continue in Malta it would be vexatious, oppressive or unjust to the defendant.
(3) The jurisdiction of the courts of civil jurisdiction is not exc l uded by the fact that there exis ts among the parties any arbitration agreement, whether the arbitration proceedings have commenced or not, in which case the court, saving the provisions of any law governing arbitration, shall stay proceedings without prejudice to the provisions of sub-article (4) and to the right of the court to give any order of direction.
(4) On the demand by any person being a party to an arbitration
agreement, the courts may issue any precautionary act, in which case, if such party has not yet brought forward his claim before an arbitrator, the time limits prescribed in this Code for bringing the action in respect of the claim shall be twenty days from the date of issue of the precautionary act.
(5) A precautionary act issued in terms of the preceding sub- article shall be rescinded:
(a) if the party against whom it is issued makes such deposit or gives such security sufficient to secure the rights or claims stated in the act; or
(b) if the applicant fails to bring forward his claim, whether before the arbitrator or before the court, within the said time limit of twenty days; or
(c) on the expiration of the duration, original or extended, of the particular act in terms of this Code; or
(d) for just cause on the application of the debtor as the court may deem proper in the circumstances.
(6) Where provision is made under any other law, or, in any regulation of the European Union making provision different from that contained in this article, the provisions of this article shall not apply with regard to the matters covered by such other provision and shall only apply to matters to which such other provision does not apply.

742A. No civil proceedings whatsoever shall be taken against the President of Malta in respect of acts done in the exercise of the functions of his office.

742B. Save as otherwise expressly provided by law, the civil cou r t s o f Mal t a shal l hav e jur i sdic ti on in re m against ships or vessels in the following maritime claims:
(a) any claim to the possession, ownership or title to or of a ship or to the ownership of any share therein;
(b) any question arising between the co-owners of a ship as to the ownership, possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage, hypothec or charge on a ship or on any share therein;
(d) any claim arising out of the contract for the sale of the ship;
(e) any claim for damage received by a ship;
(f) any claim for damage done or caused by a ship, either in collision or otherwise;
(g) any claim for loss of life or personal injury caused, whether on land or on water, by any ship or occurring in connection with the operation of any ship or sustained in consequence of any defect in a ship or in her apparel or equipment or in consequence of the wrongful act, neglect or default of -

Immunity of the President of Malta. Added by:

XXIV. 1995.284.

Jurisdiction in rem against ships or vessels.

Added by: XIV. 2006.78.

(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible,
being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods in, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
(h) any claim for loss of or damage to goods, including baggage, carried in a ship;
(i) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship, whether by charter party or otherwise;
(j) any claim in the nature of salvage operations or any salvage agreement including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment;
(k) any claim for -
(i) damage or threat of damage caused by the ship to the environment, coastline or related interests;
(ii) measures taken to prevent, minimize or remove such damage; and for compensation for such damage;
(iii) costs of reasonable measures of reinstatement to the environment actually undertaken or to be undertaken;
(iv) loss incurred or likely to be incurred by third parties in connection with such damage; and
(v) for damage, costs or loss of a similar nature to those listed in subparagraphs (i) to (iv);
(l) any claims regarding costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship, and costs or expenses relating to the preservation of an abandoned ship and maintenance of her crew;
(m) any claim in the nature of towage in respect of a ship; (n) any claim in the nature of pilotage in respect of a ship; (o) any claim in respect of goods, materials, provisions,
bunkers, supplies and necessaries supplied or services rendered to a ship for her operation, management,
preservation or maintenance;
(p) any claim in respect of the construction, re-
construction, repair, conversion or equipping of a ship; (q) any claim in respect of port, dock or harbour dues and
charges;
(r) any claim by the master, officers, or member of the crew, or complement of a ship, for wages and other sums due to them in respect of their employment on the ship including costs of repatriation, and social security contributions payable on their behalf;
(s) any claim by a master, shipper, charterer or agent in respect of disbursements made by them on account of a ship or her owners;
(t) any claim for commissions, brokerages, or agency fees payable in respect of the ship, by or on behalf of the ship owner or demise charterer;
(u) any claim arising out of an act which is or is claimed to be a general average act;
(v) any claim arising out of bottomry;
(w) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried or have been attempted to be carried in a ship or for the restoration of a ship or any such goods after seizure;
(x) any claim for insurance premia, including mutual insurance calls, in respect of the ship payable by or on behalf of the ship owner or demise charterer;
(y) any claim for fees and other charges due to the Registrar-General of Shipping and Seamen arising under the provisions of the Merchant Shipping Act, and any claim for tonnage dues.

Cap. 234.

742C. In the cases mentioned in article 742B(a) to (c), an action in rem may be brought before the civil courts of Malta against the ship in connection with which the claim or question arises.
742D. Save for those claims which attract a special privilege in accorda n ce with article 50 of the Merchan t Sh ip pi ng Act, and whi c h, in terms o f arti cle 3 7 D(3) of th e said Act, surviv e th e voluntary sale of a vessel by up to one year, in the cases mentioned in article 742B(d) to (y), an action in rem may be brought before the civil courts of Malta against -
(a) that ship or vessel, where the person who would be liable on the claim for an action in personam (''the relevant person'') was, when the cause of action arose, an owner or charterer of, or in possession or in control of, the ship or vessel, if at the time when the action is brought the relevant person is either an owner or beneficial owner of that ship or the bareboat charterer of it;
(b) any other vessel of which, at the time when the action is brought, the relevant person is the owner or

Action in rem in cases mentioned in article 742B(a) to (c).

Added by: XIV. 2006.78.

Action in rem in cases mentioned in article 742B(d) to (y).

Added by: XIV. 2006.78. Cap. 234.

beneficial owner as respects all shares in it.

Jurisdiction in rem against aircraft. Added by:

VIII. 2010.61.

742E. (1) Save as otherwise provided by law, the civil courts of Malta shall have jurisdiction in rem against aircraft in the following claims:

Cap. 503.

Cap. 503.

Cap. 232.

(a) any claim to the ownership, or title to or of an aircraft, or to the ownership of any share therein;
(b) any claim for possession of the aircraft;
(c) any claim in respect of a mortgage or equivalent international interest;
(d) any claim giving rise to a special privilege in terms of article 42(1) of the Aircraft Registration Act;
(e) any claim based on a registered non-consensual right or interest registered in the International Registry in terms of the First Schedule and article 42(2) of the Aircraft Registration Act for which the owner of the aircraft would be liable in personam;
(f) any claim in the nature of salvage in respect of an aircraft;
(g) any claim in the nature of towage in respect of an aircraft;
(h) any claim in the nature of pilotage in respect of an aircraft.
(2) The reference in subarticle (1)(f) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from an aircraft or in preserving cargo, apparel or wreck as, under article 14 of the Civil Aviation Act, are authorized to be made in connection with an aircraft.
(3) For the purposes of subarticle (1)(g) and (h), "towage" and "pilo tage" mean towage and pilotage while th e ai r c raft is waterborne.

Action in rem. Added by: VIII. 2010.61.

742F. (1) An action in rem may be brought against the relevant aircraft before the civil courts of Malta on a claim mentioned in article 742E when:
(a) the claim arises in connection with that aircraft;
(b) the person who would be liable on the claim for an action in personam ("the relevant person") was, when the cause of action arose, the owner or lessee of, or in possession or in control of, the aircraft, if at the time when the action is brought the relevant person is either an owner or beneficial owner of that aircraft or the lessee of that aircraft under a dry lease agreement; and
(c) the relevant threshold for the issue of a warrant of arrest of aircraft as provided in article 865E is satisfied.
(2) Notwithstanding the previous subarticle, in the case of a claim in terms of article 742E(1)(e), (g) and (h) in respect of an
aircraft, an action in rem may be brought before the civil courts of Malta against the aircraft only if, at the time when the action is brought, it is beneficially owned by the person who would be liable on the claim in an action in personam.

743. (1) The party against whom the defendant in an action brought by such party sets up a counter-claim shall also be subject to the jurisdiction of the courts of civil jurisdiction.

(2) The provision of this article shall also apply in the cases referred to in article 402.

Party against whom counter- claim is set up, subject to jurisdiction of the courts of civil jurisdiction. Amended by: XXIV. 1995.285.

744. The provisions of the last preceding article shall apply also in the case where the counter-claim may not, for other reasons, be set up before the court before which the original action has been brought; in such case, the claim of the defendant, if connected with the subject of the action of the plaintiff on any of the grounds mentioned i n article 396, may be brought b e fore any other competent court in Malta.

745. In regard to the jurisdiction as between the several courts of Malta, by reason of the presumed residence of parties, absent or under any legal disability, or of any body corporate or other body hav ing a distinct legal personality, unl ess for other reasons t he action be within the exclusive jurisdiction of one of the said courts, the following rules shall be observed:

(a) citizens of Malta and all other persons domiciled in Malta, who are absent therefrom, shall be presumed to be resident in their last place of abode in Malta;
(b) any other person, not domiciled in Malta, shall, in the cases referred to in article 742(1)(c) and (f), be presumed to be resident in the place in which the property is situate or exists, notwithstanding that the action be not, for such reason, within the exclusive jurisdiction of the court of the aforesaid place;
(c) a minor subject to paternal authority is presumed to reside in the place in which the parent exercising that authority resides;
(d) the wife is presumed to be resident in the place in which her husband resides, unless she is legally separated from her husband or has taken up a separate residence;
(e) any person under the care of a tutor or curator is presumed to reside in the place in which the tutor or curator or any one of the tutors or curators resides;
(f) any body corporate or other body having a distinct legal personality, is presumed to have its residence in the place in which any one of the representatives of such body or person resides;
(g) any person represented by an attorney or agent in
Malta, or who is allowed to sue and to be sued in the

Where counter- claim may be set up in other competent court in Malta.

Rules as to jurisdiction between the several courts of Malta.

Amended by: XLVI. 1973.108;

XXII. 1976.4; XXIV. 1995.286.

person of his attorney or agent, is presumed to be resident in the place in which the attorney or agent or any one of the attorneys or agents, if more than one, resides, if the action is brought against such attorney or agent;
(h) in regard to a vacant inheritance, the competent court shall be that of the last place of abode of the deceased, where such place is known; where such place is not known, the competent court shall be that of the place in which the property is situate or exists, or if there is no property, the court of the place in which the plaintiff resides.

Plea to jurisdiction based on value of thing in issue.

Uncertain or indeterminate value.

Indeterminable value.

746. Where the plea to the jurisdiction of a particular court depends on the value of the thing in issue, the rules contained in the following articles shall be observed.

747. (1) An uncertain or indeterminate value shall always be deemed to be outside the juri sdi c ti o n of a cou r t o f li mit ed jurisdiction.

(2) The following actions shall always be deemed to be of an indeterminable value:
(a) actions touching any honour, prerogative or prominence;
(b) actions as to filiation, adoption, interdiction or incapacitation of lunatics, imbeciles or persons insane or prodigal; or as to any tutorship or curatorship, or, generally as to the status of any person;
(c) actions in which the value of the thing in issue does not result from the demand of the plaintiff, and is not determinable under any of the rules set forth in the following articles.

Determination of value by the demand.

748. The value of the thing in issue is determined by the demand-

(a) when the demand is for the payment of a fixed sum;
(b) when the demand is for a thing the value of which is determined in the title which gives cause to the action, or in any other writing binding upon the parties, or by common repute, or by the market price.

Determination of value of immovable property,

or of right in perpetuity to ground-rents, etc.

749. (1) Where the value of any immovable property is not determined in the manner stated in the last preceding article, such val u e is det e rmi n ed by t h e net am ou nt o f th e r e nt o f th e l a st preceding year, multiplied by twenty-five.

(2) The rule prescribed in sub-article (1) shall also apply for the purpose of determining -
(a) the value of a right in perpetuity to ground-rents, annuities, or other yearly payments;
(b) the value of the thing in issue, in any action touching the revision of an emphyteutical grant in consequence
of forfeiture or expiration.

750. The value of a right to ground-rents, annuities, or other yearly payments for a determinate period, is determined by the total am ount of the net incom e for the rem a ining period of time, reckoning the yearly inco m e , whe r e the same is not o t her w i s e determined, on the basis of the income of the last preceding year.

751. If the right mentioned in the last preceding article is for the lifetime of any person, or for an indeterminate period, the value is determined by the net inco me of the last preceding year multiplied by ten.

752. In actions for maintenance the value of the claim shall be the equivalent to the amount of maintenance claimed to be due in five years.

753. (1) In actions touching the performance of an obligation the amount whereof is to be pa i d by in stal men t s, th e val u e is determined by the amount claimed in respect of the instalment or instalments fallen due up to the day of the claim.

(2) When the object of the claim is to enforce or avoid an obligation, the value is determ ined b y the full amount of the obligation.

Determination of value of right to ground-rents, etc., for a determinate period.

Determination of value of right to annuities for life or for indeterminate period.

Determination of value in actions for maintenance. Substituted by: XXIV. 1995.287.

Determination of value in actions touching obligations the amount whereof is payable by instalments,

or in actions to enforce or avoid obligations.

754. The rule laid down in sub-article (2) of the last preceding article shall apply also in the case where the obligation is sought to be avoided by way of defence:

Provided that in such case the court, if it declares the issue so raised to be outside its jurisdiction, shall reserve the costs of the proceedings before it for decision by the court before which the action is subsequently brought.

Avoidance of obligation ope exceptionis.

755. In actions touching the existence or validity of any contract of lease, or the determination of any lease before the term agreed upon, the value is established -

(a) in the first case, by the total amount of the rent in respect of the whole period for which it is claimed that the contract is operative; and
(b) in the second case, by the total amount of the rent in respect of the whole period remaining for the completion of the contract.

Determination of value in actions touching contracts of lease,

756. (1) The rule laid down in paragraph (b) of the last preceding article shall apply to actions for the ejectment of tenants for arrears of rent, or for any other lawful cause.
(2) Where the ejectment is demanded after the expiration of the lease, the value is determined by the amount of the rent of one year, or, where the yearly rent in respect of urban property is payable by instalments, by the amount of one instalment.

in actions of ejectment of tenants.

Where no determinate period is alleged,

or where a determinate period is alleged by defendant.

757. (1) In the actions referred to in the last two preceding articles, where it is not alleged that the lease was contracted for a determinate period, the value is determined by the amount of each termly payment, if the lease is in respect of urban property, or by the rent of one year, if the lease is in respect of rural property.

(2) If the defendant alleges that the lease was contracted for a determinate period by reason of which the court declares the matter to be outside its jurisdiction, the provisions of article 754 shall apply as regards the reservation of costs.

Determination of value in actions relating to rendering of accounts.

758. (1) In actions concerning the rendering of accounts in connection with the administration of sums of money, the value of the thing in issue is determined by the amount of such sums.

(2) If the administration is in respect of immovable property, the value of the thing in issue is determined by the yearly rent, wit hout any deduct i on therefrom , m u ltiplied by the num ber of years involved in the claim of the plaintiff.

Actions for payment of several sums due for different causes.

Actions relating to capital and interest.

759. If the plaintiff claims payment of several sums due for diff erent causes, the value is det e rmined by the highest sum, irrespective of the smaller sums.

760. (1) In actions concerning capital and interest, the value is determined by the aggregate amount of capital and interest.

(2) Where the plaintiff, on being called upon by the court or by the defendant, refuses to state the period of time which has elapsed since he last received payment of the interest, the value in respect of su ch in terest sh all b e d e ter min ed by co mp ut in g th e amo u n t thereof from the time when such interest was agreed upon.

Valuation by expert.

Appointment of expert.

Where parties do not agree on expert to be appointed.

Expert may be challenged for good cause.

Valuation not subject to appeal.

761. In all cases not provided for in the foregoing articles of this sub-title, any value which is uncertain may be determined by a valuation made by experts or by a declaration of the plaintiff to the effect that he is prepared to accept a fixed sum of money in lieu of the thing in issue.

762. (1) The valuation in the case referred to in the last preceding article shall be made by one expert only.

(2) If the parties do not agree in naming the expert to be appointed, the expert shall be chosen and appointed by the court.
(3) The expert so appointed by the court may only be challenged for good cause.
(4) No appeal shall lie from the valuation of the expert.

763. (1) In order to determine the court to which an appeal from a judgm ent of the Court of Magistrates (Gozo) may be brought in cases where the value m ay on ly be de term in ed b y a valuation of experts, such valuation shall be made in the manner provided in the last preceding article, in pursuance of an order of the said Court of Magistrates upon a demand, which may be even verbal, of bot h parties or on e of them , wit h in the t i m e of six working days from the day of the judgment.

(2) The report shall be sworn by the expert in the presence of the registrar, and inserted in the record.
(3) The demand for the valuation may also be made during the hearing of the cause.
(4) The default of a valuation made under sub-article (1) within the period therein prescribed shall not be a cause of the nullity of the appeal if, upon a valuation made in pursuance of an order of the court before whom the appeal has been brought, it results that the matter of the claim is, by reason of its value, within the appellate jurisdiction of that court.

Determination of value for the purpose of establishing court to which appeals from judgments of Gozo court in its superior jurisdiction are to be brought. Amended by:

XIII. 1925.5; XXIII. 1971.25;

VIII. 1990.3.

764. A valuation made by one or more experts appointed by consen t of bo th parti e s, and ve rifie d o n o a th b y t h e expert or experts in the presence of the registrar, shall, for the purposes of articles 761 and 763, have the same effect as a valuation made by an expert appointed by the court.

765. For the purpose of determining the value of the thing in issue, no regard whatever shall be had to any fruits, accession, damages or interest, which may accrue or arise pending the suit.

766. The value determined for the purpose of establishing the j u risd iction of the cou r t sh all no t be availed of for any other purpose, except for regulating the taxation of judicial costs.

767. The privilege referred to in article 741(c) is granted to parties residing in the Island of Malta with reference to the courts of such Island, and to parties residing in either of the Islands of Gozo and Comino with reference to the court of such Islands.

768. (1) Where the number of the defendants residing in Malta exceeds that of the defendants residing in the Islands of Gozo and Comino, each of the defendants residing in Malta may deny the jur isdi ctio n o f the cour t of Go zo; and where the number of the defendants residing in the Islands of Gozo and Comino exceeds that of the defendants residing in Malta, each of the defendants residing in Gozo or Comino may deny the jurisdiction of the court of Malta.

(2) Where the jurisdiction of a court is denied by one of the parties, such court shall cease to have jurisdiction in regard to all the parties.

Valuation of expert appointed by parties.

Fruits, etc., not to be reckoned in determining value.

Determination of value for purposes of jurisdiction only to form basis of taxation of judicial costs.

Privilegium fori. Amended by:

XV. 1913.142.

Rules as to jurisdiction where some defendants reside in Malta and some in Gozo or Comino.

privilegium fori, where number of defendants residing in Malta is equal to the number of defendants residing in Gozo and Comino,

or where action touches obligation to be carried out in one particular Island.

Privilegium fori may not be claimed by heir if it could not be claimed by predecessor.

Express or tacit waiver of privilegium fori.

Jurisdiction not affected by reason of the place where thing is. Jurisdiction ratione depositi.

of Malta is equal to that of the defendants residing in the Islands of
Gozo and Comino, the privilegium fori shall cease.
770. The privilegium fori shall also cease, where the action touches an obligation which, according to the agreement, was to be carried out in any one particular Island.
771. The privilegium fori may not be claimed by the heir, where, for the reason mentioned in the last preceding article, it could not have been claimed by his predecessor.
772. The privilegium fori may be waived, and if not claimed shall be deemed to be waived. The contumacy of the party shall be equivalent to a claim to such privilege.
773. Subject to the provisions of article 745(b) and (h), if a particular court in Malta is otherwise competent, such competence shall not be affected by reason of the place in Malta where the thing is:
Provided that in actions touching the recovery of deposits, the com p et ent cou r t shall be that under t h e aut hority o f which the moneys or other things are deposited.

Where want of jurisdiction is to be declared by court of its own motion. Amended by:

XV. 1913.144. Substituted by:

XXIV. 1995.288.

774. In the absence of any plea to the jurisdiction, the court shall, of its own motion, declare that it has no jurisdiction -

(a) where the action is not one within the jurisdiction of the courts of civil jurisdiction of Malta and the defendant has either made default in filing the statement of defence or is an absent defendant represented in the proceedings by curators appointed in terms of article 929; or
(b) where by reason of the subject matter of the claim or of the value of the thing in issue, the action is not within the jurisdiction of the court; or
(c) where in actions touching the recovery of deposits, the monies or other things are deposited under the authority of another court:
Provided that in the cases referred to in paragraph (b) pleas to the jurisdiction may not be pleaded nor raised ex officio in an appellate court.

Conflicting decisions as to jurisdiction. Amended by: XV. 1913.145;

XXIV. 1995.289.

775. Where two or more courts have respectively declared their want of jurisdiction in regard to a particular action, which, nevertheless, is within the jurisdiction of one of such courts, it shall appertain to the Court of Appeal to determine which of such courts is comp eten t, no twit hst a nd in g th at no ap peal fr om any o f th e decisions of such courts has been brought before the said Court of Appeal in the ordinary way.

776. Where the issue has not been brought before the Court of Appeal by an appeal in the ordinary way, it shall be lawful at any time for the purposes of the last preceding article, to make an app licati on to that cour t and that court shall, after hearing the parties, determine which of the said courts is the competent court.

777. The court of first instance which is declared by the Court of Appeal to be the competent court, shall take cognizance of the action.

778. Repealed by: XXIV. 1995.290.

779. Repealed by: XXIV. 1995.290.

Sub-title IV

OF THE PLEA AS TO THE CAPACITY OF THE PLAINTIFF OR

DEFENDANT

Procedure. Amended by: XV. 1913.145.

Court of first instance declared competent by

Court of Appeal, to take cognizance of

action. Amended by: XV. 1913.145.

Question of jurisdiction ratione materiae.

Amended by: XV. 1913.146;

XXXI. 1934.66. Substituted by:

XXIII. 1971.16.

Question of jurisdiction as between civil and commercial division of Gozo court in its superior jurisdiction.

Added by:

XV. 1913.147.

Amended by:

VIII. 1990.3.

780. The plea as to the capacity of the plaintiff or the defendant may be raised, if the one or the other is under any legal disability to sue or be sued or if he sues or is sued in the name and on behalf of others without being lawfully authorized for the purpose.

781. The following persons may not sue or be sued:

(a) a minor, except in the person of the parent exercising paternal authority, or, in the absence of such parent, of a tutor or a curator;
(b) a lunatic or an insane person, and any other person who is not vested with the free exercise or administration of the rights to which the action refers, except in the person of the party to whom such administration is lawfully entrusted, or of a curator ad litem.

Plea as to capacity of plaintiff or defendant.

Incapacity to sue or be sued.

Amended by: XV. 1913.148;

XLVI. 1973.108.

782. The provisions of article 781 shall not apply to -

(a) any minor, if such child carries on trade with the consent of the parent exercising paternal authority even though the action touches matters not relating to trade, or if the said parent has expressly given his

Exceptions. Substituted by: XLVI. 1973.108.

assistance;
(b) any minor in any action against the said parent provided the child is represented by a curator ad litem.

Appointment of curator ad litem. Amended by: XLVI. 1973.108.

783. (1) In the cases referred to in this sub-title, the curator ad litem may be appointed by the same court before which the action has been brought, or is about to be brought, upon the application of any person interested.
(2) The application for the appointment of a curator to represent a minor who desires to sue, may be made by any person.
(3) The application for the appointment of a curator shall not be entertained by the court if the person in respect of whom such appointment is applied for is already represented by a tutor or a curator, unless the action is against such tutor or curator.

Authorization of court in lieu of assent of parent. Amended by: XLVI. 1973.108.

General authority by court to child. Amended by: XLVI. 1973.108.

Plea as to capacity of person may not be raised against procurator of revenue of Diocesan Bishop of Malta,

Amended by: XI. 1859.31;

L.N. 46 of 1965; LVIII. 1974.68; XXIV. 1975.2;

VIII. 1990.3; XXIV. 1995.291.

or Attorney

General,

or public official in

Gozo.

784. If the parent exercising paternal authority, owing to absence or for other reasons, is unable or refuses to appear for the child, or is unable or refuses to give his assent for his child to sue, the requisite authority may be granted by the court of voluntary jurisdiction, if such court shall deem fit to grant such authority.

785. (1) In the case referred to in article 784, it shall be lawful for the court of voluntary jurisdiction to grant to the child a general authorization to sue or be sued in any action which may be pending at the time, or which may thereafter be brought.

(2) The court may grant such authorization under such special conditions as it may deem proper, according to circumstances.
786. (1) It shall not be lawful to raise the plea as to the capacity of a party suing or sued in the name and on behalf of any other party against the Economo or other official performing an equivalent function at the Archbishop’s Curia in Malta and at the Bishop’s Curia in Gozo, against any of the persons mentioned in article 180(1)(a).
(2) Nor may such plea be raised against the Attorney General in any action in which he is especially authorised by law to appear, or where he is authorized by the competent authority to appear in regard to any action touching public policy, and in so far as the public interest is concerned.
(3) Nor may such plea be raised against any official in charge of any branch of the public service in Gozo, who appears before the Court of Magistrates (Gozo) in connection with matters pertaining to his office, provided the head of the department to which the said official may by reason of such office belong, be residing in Malta; i n such cases, the pr ov isi o n s o f thi s C ode r e lat i n g to hea d s o f departments, shall be applicable to such official.

786A. It shall not be lawful to raise the plea of incapacity of a party against any of the persons mentioned in article 181A(2) in the case of a body having a distinct legal personality, and in the case of any person mentioned in article 187(7) in the case of a ship or other vessel.

787. (1) Any judicial act performed by, or against, any person who is under disability to sue or be sued, and not duly authorized for the purpose, is null.

(2) Any nullity arising from minority may not be alleged except by the minor himself or his heir.
(3) Any nullity from want of assent of the parent, may not be alleged except by the parent; nor may it be alleged by the parent after the child ceases to be subject to paternal authority.

When plea of incapacity is not allowed.

Added by:

XXIV. 1995.292.

Nullity of acts by or against persons under disability. Amended by: XLVI. 1973.108.

788. The defect of nullity may be cured, if the parent exercising paternal authority or the curator, appearing of his own will, or on being made a party to the suit, affirms the acts.

Cure of defect of nullity.

Amended by:

IV. 1862.16;

XLVI. 1973. 108.

Sub-title V

OF THE PLEA OF NULLITY OF JUDICIAL ACTS

789. (1) The plea of nullity of judicial acts is admissible - (a) if the nullity is expressly declared by law;
(b) if the act emanates from an incompetent court;
(c) if the act contains a violation of the form prescribed by law, even though not on pain of nullity, provided such violation has caused to the party pleading the nullity a prejudice which cannot be remedied otherwise than by annulling the act;
(d) if the act is defective in any of the essential particulars expressly prescribed by law:
Pr ov id ed th at suc h p l ea o f nu ll ity a s is con t e m p l at ed in paragraphs (a), (c) and (d) shall not be admissible if such defect or violation is capable of remedy under any other provision of law.
(2) The plea of nullity of an act, under sub-article (1)(c), shall not be admissible if the party pleading such nullity has proceeded, or has knowingly suffered others to proceed, to subsequent acts, without pleading such nullity.

Plea of nullity of judicial acts. Amended by: XXIV. 1995.293.

790. Where before an appellate court the plea of nullity of a judgment appealed from is raised, such plea shall not be entertained if the judgment is found to be substantially just, unless such plea is founded on the want of jurisdiction or default of citation, or the incapacity of the parties, or on the judgment of the court of first instance being extra petita or ultra petita or on any defect which prejudices the right to a fair hearing.

Where plea of nullity of judgment may not be entertained. Substituted by: XXIV. 1995.294.

Sub-title VI

OF PLEAS IN SPOLIATION SUITS

Pleas in spoliation suits.

Amended by: X. 1856.16;

XVI. 2006.26.

Cap. 9.

791. (1) The defendant in a spoliation suit brought within the period of two months from the day on which the spoliation took place may not raise any plea other than dilatory pleas, before he sh all have rest ored the thing to it s fo rmer condit i on and fu lly revested the party despoiled within the time which, according to circum stances, may have been fi xed in th e judgm ent , wit hout prejudice to any other right appertaining to the defendant.

(2) The provisions of this article shall also apply in the case where a tenant has been dispossessed of the thing let out to him whether by the lessor or by a third party.
(3) The court shall limit its inquiry to the question of possession or detention, and to the question of spoliation.
(4) In a spoliation suit the depositions of witnesses given in criminal proceedings for an offence under article 85 of the Criminal Code for the same conduct concerned in the suit shall be admissible as evidence in the suit without prejudice to the right of the other party to cross-examination.

Sub-title VII

OF THE PLEA OF LIS ALIBI PENDENS OR OF

CONNECTION OF ACTIONS

Lis alibi pendens. 792. Where an action is brought before a competent court after another action in respect of the same c l a i m ha s already been brought before another competent court, the second action may be transferred for trial to such other court.

Connection of actions, Amended by: IX. 1886.100.

before appellate court.

Separate judgment in each action.

793. (1) If two or more actions brought before one and the same court are connected in respect of the subject-matter thereof, or if the decision on one of the actions might affect the decision on the other action or actions, it shall be lawful for the court to order that the several actions be tried simultaneously.

(2) Where several actions have been tried simultaneously before the court of first instance, they may be tried in like manner before the appellate court, without the necessity of any other order of the court.
(3) Nevertheless a separate judgment shall be given in each action, both in the court of first instance and in the appellate court, every judgment containing a statement of the respective reasonings, or a reference to the reasonings premised to the decision given in any other of the actions heard simultaneously.
794. (1) The plea of lis alibi pendens or of connection of actions may be raised at any time until judgment is delivered.
(2) The court shall determine the plea; and if such plea is disallowed, the court may at the same time decide on the merits of the action.
(3) Where an application to the Civil Court, First Hall has been made u nder article 35 5 of the Merchant Shippi ng Act , the foregoing provisions of this article shall apply only to the extent that they are not inconsistent with the provisions of that article.

Period within which to oppose plea.

Amended by: XI. 1973.377; XXIV. 1995.357.

Cap. 234.

Sub-title VIII

OF THE PLEA AS TO BENEFICIUM EXCUSSIONIS

795. The defendant who pleads the benefit of discussion shall p r esent during th e hearin g of th e cause, or previously, a list showing distinctly the property situate in Malta, possessed by the party of whom discussion is pleaded, and sufficient to satisfy the claim of the plaintiff.

796. If the plea of discussion is admitted, the defendant shall, within the time fixed by the court, deposit in favour of the plaintiff a sum to be also fixed by the court to meet the costs which will be occa sio n ed b y th e di scussi on , an d bi nd h i mse l f t o prov id e th e plaintiff with such further sum as may become necessary for the purpose.

797. Upon compliance with the requirements of the last preceding article, the court shall order that the proceedings of the cause in which the plea of discussion has been raised, be suspended indefinitely or for a fixed time, according to circumstances.

798. If, on the contrary, the defendant fails to comply within the said time with any of the requirements above-mentioned, the cause shall be proceeded with irrespective of the plea of discussion.

799. (1) The provisions of the last preceding article shall apply also in th e case wh ere the pl ainti ff shall not succeed i n recovering the w hole am ou nt o f hi s claim out of the pro p erty mentioned in the list referred to in article 795.

(2) Nevertheless in any such case, the defendant may be allowed to indicate other property, if he shows to the satisfaction of the court, that at the time of the decree suspending the proceedings of th e cause he w a s no t aw are of th e exi s tence of such ot her property.

Plea as to beneficium excussionis. Amended by: IV. 1868.11.

Deposit of costs of discussion. Amended by:

IV. 1868.11.

Suspension of proceedings. Amended by: IV. 1868.11.

Default of defendant. Amended by: IV. 1868.11.

Cause to be proceeded with if claim is not wholly satisfied.

Amended by: IV. 1868.11;

VII. 1880.15.

800. If the defendant is allowed to indicate other property, the provisions of articles 796 to 799 shall apply.

Discussion of other property.

Amended by:

IV. 1868.11.

Plea may be waived. Amended by: XI. 1859.32; IV. 1868.11.

801. (1) It shall be lawful for the defendant to waive the plea of discussion previously raised by him, and demand that the cause be d i spo s ed o f ev en t hou gh th e pl aint if f may have al ready commenced the procedure of discussion.

Liability for costs. (2) In such case, the costs incurred in connection with the procedure of discussion shall be borne by the defendant.

Sub-title IX

OF THE PLEA OF FALSIFICATION

Plea of falsification.

Where cause can be decided irrespective of plea.

Plea to be determined independently of criminal action.

Arrest of person suspected of falsification. Amended by: VIII. 1990.3.

802. The plea of falsification may be raised not only by the party to whom the document is attributed but also by any other party against whom the document is produced.

803. Where the cause can be decided independently of the document averred to be false, the court shall decide on the merits, irrespective of the plea of falsification.

804. The plea of falsification shall be determined independently of any criminal action.

805. If, at any stage of the proceedings, it shall appear to the court that there are strong grounds to suspect the falsification of any document, it shall of its own motion order the party suspected of such falsification to be arrested and brought before the Court of Magistrates, in order that he may be dealt with according to law.

Title III

OF THE CHANGE OF PARTIES BY DEATH, ETC.

Where party to suit dies.

Continuation of suit by

presumptive heir or curators. Substituted by:

XXIV. 1995.295.

806. In the case of death pendente lite of any party to a suit, the heir or executor of such party, or any other person interested may make an application for an order enabling him to continue the suit in substitution for the party deceased.

807. (1) Where no application is made by any person to continue the suit in substitution for the deceased party, it shall be lawful for the other party, by means of an application, to demand that the suit be continued in the name of the presumptive heir or heirs of the deceased party, if known.

(2) Such application shall by order of the court, be served on the presumptive heir or heirs who shall have the time of one month within which to declare whether he or they are prepared to continue the suit.
(3) If no such declaration is made, then the court shall of its own motion proceed to appoint a curator ad litem to represent the
interests of the deceased in the suit in accordance with article 809.
(4) Where no person entitled to represent the deceased is k n o w n , such app licati o n may co nt ai n on ly th e demand fo r t h e appointment of curators to continue the suit.
(5) The curator shall take all the necessary measures to identify and locate the presumptive heir or heirs of the deceased and when the presumptive heir or heirs are identified and located the curator shall request the court to notify him or them about the pendency of the case ordering him or them to declare within a specified time whether he or they are prepared to continue the suit.

808. The default of the heir or executor to continue the suit shall not imply renunciation of the inheritance or executorship; and it shall be lawful for t he heir or ex ecutor, by application, upon proving his title to the court, to assume at any time the continuation of the suit, and cause the effect of the appointment of curators to cease in regard to further proceedings. The application shall be served on the curators and the other parties in the suit who may file an answer thereto within such time as the court may establish.

809. The banns for the appointment of curators shall be served on the presumptive heir or heirs, if known; and if unknown such banns shall be published twice, in at least two daily newspapers, at an interval of one week between such publications, at the expense of the applicant without the need of any notification.

810. (1) It shall also be lawful for a party who has not as yet declared his acceptance of the inheritance or executorship, to appear and accept the appointment as curator, and in such capacity continue the suit.

(2) It shall be lawful for the court, if it deems it expedient, to appoint, in addition to the said heir or executor, a curator from among the advocates on the rota referred to in article 91.

Default of heir, etc., to continue suit not to imply renunciation of inheritance, etc. Substituted by: XXIV. 1995.296.

Service of banns on presumptive heir.

Amended by: XXIV. 1995.297.

Acceptance of curatorship.

Court may appoint official curator.

810A. In the case of any other change of parties to the suit other than by the death pendente lite of any party to the suit, the person who wishes to take up the case shall file an application requesting authorisation to assume the acts of the case in addition to or instead of the party concerned, and any judgment shall also bind such party assuming the acts.

Change of parties due to other causes.

Added by:

XXIV. 1995.298.

Title IV

OF NEW TRIAL

811. A new trial of a cause decided by a judgment given in second instance or by the Civil Court, First Hall, in its Constitutional Jurisdiction, may be demanded by any of the parties co ncerned , such judg ment being first set aside, in an y of t h e following cases:

(a) where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party;
(b) where the sworn application was not served on the party cast, provided that, notwithstanding such

New trial of decided causes. Amended by: XI. 1859.33;

IX. 1886.101; XXII. 2005.62;

VII. 2007.23.

Grounds for new trial.

omission, such party shall not have entered an appearance at the trial;
(c) where any of the parties to the suit was under legal disability to sue or be sued, provided no plea thereanent had been raised and determined;
(d) where the judgment was delivered by a court having no jurisdiction in terms of article 741(a), provided no plea thereanent had been raised and determined;
(e) where the judgment contains a wrong application of the law;
For the purposes of this paragraph there shall be deemed to be a wrong application of the law only where the decision, assuming the fact to be as established in the judgment which it is sought to set aside, is not in accordance with the law, provided the issue was not in reference to an interpretation of the law expressly dealt with in the judgment;
(f) where judgment was given on any matter not included in the demand;
(g) where judgment was given in excess of the demand;
(h) where the judgment is conflicting with a previous judgment given in a suit on the same subject-matter and between the same parties, and constituting a res judicata, provided no plea of res judicata had been raised and determined;
(i) where the judgment contains contradictory dispositions;
(j) where the judgment was based on evidence which, in a subsequent judgment, was declared to be false or which was so declared in a previous judgment but the party cast was not aware of such fact;
(k) where, after the judgment, some conclusive document was obtained, of which the party producing it had no knowledge, or which, with the means provided by law, he could not have produced, before the judgment;
(l) where the judgment was the effect of an error resulting from the proceedings or documents of the cause.
For the purposes of this paragraph there shall be deemed to be such error only where the decision is based on the supposition of some fact the truth whereof is incontestably excluded, or on the supposition of the non-existence of some fact the truth whereof is positively established, provided that, in either case, the fact was not a disputed issue determined by the judgment.

New trial of causes decided in first instance.

Amended by: IX. 1886.101.

812. A new trial may also be demanded in respect of a cause decided by a judgment of a court of first instance and constituting a res judicata, by any of the parties concerned, on any of the grounds
ment ion e d in the l a st precedi ng a r ticle, provide d the fa cts constituting the grounds for such new trial shall have come to the knowledge of the party after the expiration of the time limited for the appeal.

813. A new trial shall not be granted except on any of the grounds mentioned in article 811 and shall not be granted except in regard to such heads of the judgment complained of in respect of which any of such grounds exists and in regard to such other heads as are dependent thereon.

814. Subject to the provisions of Sub-title II of Title II of Book Third of this Code the demand for a new trial shall be made to the court by which the judgm ent complained of was given, and the same judges or magistrates may sit.

815. In the superior and inferior courts, the demand for a new trial shall be made, before a court of first instance, by means of a sworn application, and before a court of second instance, by means of an application; the application shall be accompanied by security for costs in terms of article 249.

816. In the application, whether sworn or not, the plaintiff shall distinctly state the heads of the judgment which are complained of, and the grounds for the new trial in the terms in which they are stated in article 811, making reference to the relative provisions of that article. Moreover, the plaintiff shall state, in a concise and clear manner, the facts giving rise to every such ground; and where the ground is the wrong application of the law, the plaintiff shall make reference to the law which should have been applied.

817. Repealed by: XXIV. 1995.302.

818. (1) The time for demanding a new trial is three months, which shall commence to run -

(a) in regard to the cases referred to in article 811(a) and (k), from the day on which the fraud was discovered, or the document obtained;
(b) in regard to the case referred to in paragraph (b), from the day on which the plaintiff became aware of the judgment;
(c) in regard to the cases referred to in paragraph (j), if the falsity was, at the suit or complaint of the plaintiff himself, declared subsequently to the judgment complained of, from the day of such declaration, and if it was declared subsequently to such judgment, but at the suit or complaint of other parties, or if it was declared previously, from the day on which the plaintiff became aware of such declaration;

Extent of admissibility of new trial. Amended by: XI. 1859.34;

IX. 1886.101.

Court to which demand for new trial is made. Amended by:

XI. 1859.35; IV. 1865.3;

IX. 1886.101.

Substituted by:

XXIV. 1995.299.

Form of demand for new trial. Amended by:

IX. 1886.101; VIII. 1990.3.

Substituted by: XXIV. 1995.300.; XXII. 2005.63.

Contents of sworn application. Amended by:

IX. 1886.101; XXIV. 1995.301; XXII. 2005.64.

Where demand is by writ of summons. Amended by:

IX. 1886.101.

Time for demanding new trial.

Amended by: IX. 1886.101;

XXIV. 1995.303.

Time to be peremptory and to run against minors, etc.

Amended by: IX. 1886.101; XI. 1977.2.

(d) in regard to all other cases, from the date of the judgment complained of.
(2) A new trial may in no case be demanded after the lapse of five years from which the first judgment was given.

819. (1) The time limited in the last preceding article is peremptory.

(2) Such time shall run indiscriminately even against minors and persons interdicted.

If new trial is allowed, rehearing of cause to be proceeded with. Amended by:

IX. 1886.101.

Separate judgment on demand for new trial.

820. (1) If a new trial is granted, the judgment complained of being set aside, the rehearing of the cause in respect of the merits shall be proceede d with on the same day or on some other day appointed by the court.

(2) Nevertheless a separate judgment shall in all cases be given on the demand for a new trial.

Demand for new trial to be made once only. Exceptions. Amended by:

IX. 1886.101.

Demand for new trial may be availed of by defendant. Amended by:

IX. 1886.101.

821. The demand for a new trial may not be made more than once, except on grounds which may arise subsequently to the first demand.

822. (1) The demand for a new trial may also be availed of by any of the defendants who, in the answer to the libel or petition, or in a note filed previously to the trial on that demand, shall have agreed to it.

(2) In any such case, the defendant may continue the proceedings, notwithstanding that the party who made the demand shall have waived it.

Demand for new trial not to operate as a stay of execution. Amended by:

IX. 1886.101; XXII. 1963.8; XXIV. 1995.304; XXII. 2005.65.

823. (1) The demand for a new trial shall not operate so as to stay the execution of the judgment sought to be set aside.

Power of court. (2) Notwithstanding the provisions of sub-article (1), the court b e for e wh ich a new tr ial is dem a nd ed m a y, at the inst ance, by application both before the Court of Appeal and before the court of first instance, of the party making such demand, order a stay of execution of the judgment if -

(a) together with his demand such party gives sufficient security for the execution of the judgment, if it is not set aside, including such security as is mentioned in article 266(10); and
(b) it is shown to the satisfaction of the court that the execution of the judgment is likely to cause greater prejudice to such party than the stay of execution would cause to the opposite party.
(3) The security referred to in sub-article (2)(a), when given, shall in all c a ses opera t e as a stay of execution o f a ju dg m e nt ordering the arrest or imprisonment of the debtor.
(4) The filing of the application containing the demand for the stay of execution of the judgment sought to be set aside shall not operate as a stay of execution of such judgment unless, upon an application to that effect, the court shall for just cause order such stay of execution.
(5) Where the enforcement of a judgment has been authorized by the judgment sought to be set aside the provisions of sub-articles (2), (3) and (4) shall not apply.
(6) An appeal from a judgment disallowing the demand for the stay of execution of the judgment sought to be set aside shall in no case operate as a stay of execution of the latter judgment.

824. It shall not be lawful to grant another new trial in respect of a judgment given upon a new trial.

825. (1) Nothing in this Title contained shall operate so as to bar the court, upon the application of any of the parties to be served on the other party, from amending at any time, by a decree, any error of calculation incurred in the judgment.

(2) Nor shall the court be debarred from correcting any error in the wording of the judgment, or from altering any expression which is equivocal, or which may bear a construction different from that evidently intended by the court, provided that an application is made to that effect within thirty days from the date of the judgment, and in such case, the time allowed by this Code for entering an appeal from any judgment so amended, shall commence to run from the date of the decree given on the demand for the amendment.

No new trial in respect of judgment given upon new trial. Amended by: IX. 1886.101.

Errors of calculation in judgment. Amended by: XV. 1913.152.

Errors of expression.

Title V

OF THE ENFORCEMENT OF JUDGMENTS OF TRIBUNALS OF

COUNTRIES OUTSIDE MALTA

825A. Where regulations of the European Union provide, with r e gard to t h e matt ers reg u l a ted u n d e r th is ti tl e, in an y mann er different than in this title, the said regulations shall prevail, and the provi sio n s of t h is Title shall on ly apply where t h ey are not inconsistent with the provisions of such regulations or in matters not falling within the ambit of such regulations.

826. Saving the provisions of the British Judgments (Recipro- cal Enforcement) Act, any judgment delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered.

Applicability of this Title and European Union Regulations. Added by:

III. 2004.42.

Enforcement of judgments of tribunals outside Malta.

Amended by: XXII. 2006.66. Cap. 52.

Inquiry by court.

Amended by:

XV. 1913.153;

XXIV. 1995.305.

827. (1) The provisions of the last preceding article shall not have effect:

(a) if the judgment sought to be enforced may be set aside on any of the grounds mentioned in article 811;
(b) in the case of a judgment by default, if the parties were not contumacious according to foreign law;
(c) if the judgment contains any disposition contrary to public policy or to the internal public law of Malta.
(2) For the purposes of this article, the plea to the jurisdiction of the court by which the judgment was delivered, may be raised in terms of article 811(d), even though that court may have adjudged upon a plea to its jurisdiction, in the case of any action brought against any person not subject to the jurisdiction of that court by reason of domicile or residence, unless such person had voluntarily submitted to the jurisdiction thereof.

Effects of registration of judgment in Public Registry.

828. The judgment ordering the enforcement of another judgment delivered by a court outside Malta, upon being registered in t h e Publi c Registry Office, sh al l create as from th e d a y of registration a hypothec in reg a rd to the d e bt judi cially ackn ow ledged by th e jud g ment th e en forcement of whi c h is ordered.

Title VI

OF PRECAUTIONARY ACTS

Party may safeguard his rights by precautionary acts.

Precautionary acts.

Amended by:

IV. 1862.17;

XI. 1973.377;

XII. 1985.16;

XXXIX. 1986.2;

XVII. 1991.82;

XXIV. 1995.306;

XXIV. 1995.357.

Substituted by:

XIV. 2006.79.

Amended by:

XV. 2008.27;

VIII. 2010.61.

Cap. 234.

GENERAL PROVISIONS

829. It shall be lawful for any person, without the necessity of any previous judgment, to secure his rights by one or more of the following precautionary acts, which shall be issued and carried into effect on the responsibility of the person suing out the act, provided he shall have complied with the conditions prescribed by this Code.

830. (1) The precautionary acts referred to in the last preceding article are the following:

(a) warrant of description; (b) warrant of seizure;
(c) warrant of seizure of a commercial going concern; (d) garnishee order;
(e) warrant of impediment of departure; (f) warrant of arrest of sea vessels;
(g) warrant of arrest of aircraft;
(h) warrant of prohibitory injunction.
(2) (a) Saving the provisions of article 870 of this Code and of article 357 of the Merchant Shipping Act, such acts mentioned in subarticle (1) shall be rescinded, if the
party against whom the act is issued makes such d e po sit or gi ves such security as, in the co urt’s opinion, according to the circumstances of the case, m a y be su ff icien t to saf e g u ar d th e ri gh ts or cl ai ms stated in the act, or if it is shown that a judicial act accepting liability as provided in subarticle (3) has been filed in the proper registry.
(b) Notwithstanding that a deposit is made or security is given as aforesaid, the time limits established in this Title on the creditor to bring forward his action shall continue to apply.
(c) Such time limits shall run from the date of the issue of the precautionary act, and failure by the creditor to institute proceedings within the said time limits shall entitle the debtor to withdraw the deposit or cancel the security.
(3) Where a precautionary act has been issued against any person, or such as to affect any property of such person, to secure a claim for damages, and a locally registered insurance company or local bureau thereof, as established in the Motor Ve hicles (Third Party Risks) Ordinance, such person or company shall by means of a judicial act, filed in the registry of the said court, within ten days from the date of the insured person’s demand, declare that he or the company is accepting liability to pay all sums that may be due for such damages, in connection with the claim contained in that act if such insured person is found to be responsible for such damages -
(a) the insurer or local bureau, as the case may be, shall be liable to pay all sums that may be due for damages arising as aforesaid;
(b) the claim for such damages may be pursued against the insurer or the local bureau directly; and
(c) the precautionary act against such person shall be rescinded.
(4) No precautionary act as provided in subarticle (3) shall be issued against the insured if the person intending to sue out the warrant is cognizant that the insurer or the local bureau has issued to the insured a valid insurance certificate accepting liability for t h e pay m ent of damag e s; and in such case the cl aim for such damages may be pursued against the insurer or the local bureau or agent, as the case may be, directly.

Cap. 104.

831. (1) The demand for the issue of any of the said acts shall be m a de by an application prepared by the applicant and con t ai ni ng , u n d e r pa in o f nu ll it y of t h e act , o t h e r t h an furt her details which may be prescribed by regulations:

(a) the origin and nature of the debt or claim sought to be secured; and
(b) when the right sought to be secured by the act is a debt, or a demand which may be satisfied by the payment of a sum of money, the amount of such

Application for issue of warrant. Amended by:

XV. 1913.154; XIV. 1980.5;

XXIV. 1995.307. Substituted by:

XIV. 2006.80.

demand.
If the case has already been filed in court, such demand may specify and include all judicial costs.
(2) The application shall be confirmed on oath by the applicant: Provided that where in an application there is more than one
applicant demanding th e issue of any of the precautionary acts mentioned in article 830(1) against the same respondent, the oath shall be taken by at least one of the applicants.
(3) Any of the warrants or order mentioned in article 830 shall be issued by the court:
Provided that, where in the opinion of the Registrar the signature of a judge or magistrate empowered to issue a warrant of seizure or a garni s hee order or a warrant of imp edi m ent of departure can not be obtained within a reasonable tim e and that delay may be prejudicial, the said warrants or order may be issued over the signature of the Registrar personally after having first obtained verbal authorisation from the judge or magistrate to do so. In this case, the judge or magistrate is to append his own signature under that of the Registrar at the earliest opportunity to confirm that he had given the said verbal authority or, if it is not possible for the Registrar to obtain such verbal authority, the Registrar shall u nder his auth orit y issue t h e said warrant or ord e r ov er hi s signature, subject to the ratification of such action by a judge or magistrate at the earliest opportunity..

Where claim is for payment of sum of money.

Amended by: XXIV. 1995.308.

Administering of oath.

Amended by: XXIV. 1995.309;

XV. 2008.18.

Cap. 79.

Filing of precautionary warrants with judicial letter. Added by:

XV. 2008.19. Amended by: XII. 2009.14.

832. Where the right sought to be secured by the act is a debt, o r a claim w h ich may be sat i sfi e d by th e pay m ent of a su m of money, the applicant shall also in this sworn statement referred to in the last preceding article indicate approximately the sum to which, in his belief, the debt or claim amounts, and if a cause has already been filed in court, such a claim may specify and include any judicial costs, under pain of nullity of the act.

833. The oath referred to in this Title may be administered by the registrar or by a legal procurator appointed as Commissioner for Oaths under the Commissioner for Oaths Ordinance.
833A. Where a judicial letter is filed and sworn according to article 166A, th ere m ay also thereup on be sworn and fil ed the precautionary warrants referred to in article 830(1)(a), (b) and (d):
Provided that when such judicial letter is filed, the applicant shall file a sworn application or application or petition, as the case may be, within twenty days from the date of filing of a full or partial note of contestation or else within sixty days from the date of the issuing of a warrant, unless a note of contestation will have been filed, according to which date first occurs:
Provided also that no sworn application or application or petition, as the case may be, shall be required in the case where the precautionary warrant is converted to an executive warrant or it is removed by means of a counter-warrant.

834. The court executing officer shall, at the earliest time possible, serve notice in writing to the applicant, the lawyer or the legal procurator whose signature is subscribed on the application, of the execution of the warrant or order.

835. Repealed by: XIV. 2006.84.

836. (1) Without prejudice to any other right under this or any other law, the person against whom any precautionary act has been issu ed, may make an app licatio n to th e cour t issuin g th e precautionary act, or, if a cause has been instituted, may make an application to the court hearing such c a use, praying that the precautionary act be revoked, either totally or partially, on any of the following grounds:

(a) that the precautionary act ceased to be in force;
(b) that any one of the conditions requested by law for the issue of the precautionary act does not in fact subsist;
(c) that other adequate security is available to satisfy the claim of the person at whose request a precautionary act was issued either by the issue of some other precautionary act or if such other security can to the satisfaction of the court adequately secure the claim; or
(d) if it is shown that the amount claimed is not prima facie justified or is excessive; or
(e) if the security provided is deemed by the court to be sufficient; or
(f) if it is shown that in the circumstances it would be unreasonable to maintain in force the precautionary act in whole or in part, or that the precautionary act in whole or in part is no longer necessary or justifiable.
(2) The person making the application according to subarticle (1) shall , tog e ther wit h t h e app licat ion, f ile in wri tin g all submissions to be made together with all documents in support of the demand that is being filed.
(3) The application, except for any application in terms of subarticle (1)(a), shall be served on the opposite party who may, wi th in se ven day s from th e servi ce, file a note containing all submissions to be made together with all documents in support of the demand that is being filed.
(4) The court shall decide the application with urgency either in camera or after hearing the advocates of the parties, if it deems fit, provided that not more than one sitting may be fixed for such purpose.

Notice of execution of warrant. Amended by: XIX. 1965.17; VIII. 1990.3. Substituted by: XIV. 2006.83.

S. 834 not to apply to inferior courts. Amended by:

XV. 1913.155; XXIII. 1971.27;

XIII. 1983.5; VIII. 1990.3; XXIV. 1995.310;

L.N. 407 of 2007.

Counter-warrant.

Amended by:

XV. 1913.156;

XIV. 1980.6.

Substituted by:

XXIV. 1995.311.

Amended by:

XXII. 2005.67;

L.N. 407 of 2007;

XIV. 2006.85;

XII. 2009.15.

(5) No appeal and no challenge shall lie from a decree acceding to an application referred to in sub-article (1), and such decree shall be final and irrevocable, and except in the case contemplated in sub-article (1)(a) a similar precautionary act may not be issued in security of the claim against the person agains t whom the precautionary act so revoked was issued, unless in the application for the issue of such similar precautionary act the applicant states that circumstances have arisen since the revocation of the previous precaut i onary act whi c h justi f y t h e issue of a si milar fr esh
pre cautiona ry ac t to that whic h has been revoke d , and the pro v i s io ns of th is arti cle sh all th ereup o n ap pl y to su ch precautionary act freshly issued on the basis of such application.
(6) The provisions of article 831(4) shall apply to the decree issued under sub-article (1)(a).
(7) Notwithstanding that adequate security for the satisfaction of the claim of the person at whose request the precautionary act was issued is deposited in the registry of the court, the court which issued the counter-warrant under the provisions of this article may still, on a request made by application by any interested person, investigate the legality or otherwise of the relative precautionary act and the court may also order the reduction of the amount of security deposited or declare the precautionary act to be contrary to law, in which latter case it shall give such orders as it may deem appropriate, including, if the case so warrants, the giving of the security back to the debtor.
(8) The court may condemn the applicant at whose request a precautionary act was issued to pay a penalty of not less than one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69) and not more than six thousand and nine hundred and eighty-eight euro and twelve cents (6,988.12) in favour of the person agains t whom the precautionary ac t was issu ed , in each of the following cases:
(a) if the applicant, without any valid reason, does not bring the action in respect of the claim, within the time established by law;
(b) if, on demand of the defendant for the rescission of the precautionary act, the plaintiff fails to show that the precautionary act had to be issued or that within the fifteen days previous to the application for the precautionary act, he had in any manner called upon the defendant to pay the debt, or, if the debt be not a liquidated debt, to provide sufficient security:
Provided that the provisions of this paragraph shall not apply where it is shown that there were reasons of urgency for the issue of the warrant;
(c) if the circumstances of the debtor were such as not to give rise to any reasonable doubt as to his solvency and as to his financial ability to meet the claims of the applicant, and such state of the debtor were notorious;
(d) if applicant’s claim is malicious, frivolous or
vexatious.
(9) In the case under the previous sub-article, the court at the r e q u est, by ap pli c at io n, of th e perso n again s t w h o m t h e precautionary act was issued may condemn the applicant at whose request the precautionary warrant was issued to pay such damages as may have been caused by the issue of the warrant, and in any such proceedings the court shall refer to , and make use of, the records of the proceedings of the precautionary act and of any other proceedings arising therefrom or consequential thereto, and such records shall be admissible evidence for the purposes of this action.

837. (1) It shall not be lawful for the Court of Magistrates (Mal ta), or th e Court of Mag i strates (Gozo ) in its in feri or jurisdiction to issue any warrant of description or impediment of departure for the purpose of a reference to the oath of the opposite party.

(2) It shall not be lawful to issue any precautionary warrant of seizure or garnishee order in security of any right or claim against the Government of Malta.
(3) It shall not be lawful to issue any warrant of seizure or garnishee order, in security of any right or claim against any of the p e rsons men tioned in su b-arti cle (4)( a ), or any warrant of impediment of departure in security of any right or claim against any of the persons mentioned in paragraphs (b) or (c) of the said sub-article.
(4) The persons to whom sub-article (3) refers are:
(a) any person belonging to the armed forces of any country or any person belonging to any vessel wholly chartered in the service of the Government of Malta if such person is in Malta with the force or vessel to which he belongs;
(b) any master, seaman or other person regularly enrolled, if the ship to which he belongs has obtained her clearance; and
(c) any engineer of any rank, employed on any steam vessel.
(5) (a) If any such warrant or order has been unduly issued and carried into effect against any of the persons above-mentioned, it shall be lawful to obtain the rescission of the warrant or order or of anything done thereunder by making an application to that effect stating out the cause for his exemption, and producing in support thereof any c e rtificate, docume nt, or other evidence to the sat isf actio n o f the jud ge o r mag istr ate b y w hom t he w arr ant or order was issued.

Precautionary acts which may not be issued by inferior courts.

Amended by: XI. 1859.36;

I. 1880.4;

XV. 1913.157;

XXIII. 1971.28;

L.N. 148 of 1975;

XII. 1985.17;

VIII. 1990.3;

XXIV. 1995.312;

XV. 2008.29.

Warrants which may not be issued against Government.

Persons against whom certain warrants may not be issued.

Rescission of warrants unduly obtained.

(b) The release of the person from the warrant or order may also be applied for as aforesaid by the officer commanding the v e ssel on w h ich such person is en ro lled , or by th e of fi cer commanding the force, the regiment or the company to which such pe rso n bel o n g s , or by an y o t her mi l i t a r y, n a v a l or air fo r c e authority.

Precautionary acts.

Added by:

IX. 1886.102.

Substituted by:

XIV. 2006.87.

Security for payment of penalty, etc. Added by:

XXIV. 1995.313.

Precautionary warrants to remain in force until the cause becomes res judicata.

Added by:

XXXI. 2002.172.

Amended by:

XIV. 2006.88;

XV. 2008.30.

Substituted by:

XII. 2009.16.

838. The court may, when any party makes an application before it which is served on the other party, give any order as may be required so as to p revent an y dam ag e or d eterioration being caused to the things described in the precautionary act.

838A. It shall be lawful for the court, on good cause being shown, upon the demand by application of the person against whom a precautionary act has been issued, to order the party suing out the warrant to give, within a time fixed by the court, sufficient security for the payment of the penalt y th at may be i m posed, and of damages and interest, and, in default, to rescind the precautionary act.

838B. (1) Unless rescinded by the court or withdrawn by the party suing out the warrant, all precautionary warrants shall remain in force for a period of fifteen days after the cause becomes res judicata.
(2) Notwithstanding the provisions of subarticle (1), precaution a ry warrants i s sued un der arti cle 830 (1) beco me executive warrants after that the cause becomes res judicata or when in ac cordance with a r ti cle 16 6B su ch judicial l e tt er constitutes an executive title, so however that:
(a) in the case of a warrant issued under article 830(1)(b), (c), (d) and (f), the creditor shall file a note within fifteen days from the cause becoming res judicata in the acts of the same warrant and demand an extension or reduction of the effects of the warrant to an amount equivalent to the legal costs, interest and the difference in the principal amount due in terms of the judgement, and such note is to be served upon the debtor and such persons as may have any interest therein;
(b) in the case of a warrant issued under article 830(1)(a) and (e), the creditor shall file an application under the provisions of article 388E within fifteen days from the cause becoming res judicata.

Sub-title I

OF THE WARRANT OF DESCRIPTION

Object of warrant. 839. A warrant of description may be issued in order to secure a right over movable things, for the exercise of which the applicant may h a v e an in ter e st th at such m o v a bl e t h i n gs remai n in th eir actual place or condition.

840. (1) The marshal shall execute a warrant of description by describ i ng th e th ings in detail stati ng the num ber and qual ity thereof.

(2) He shall also state the weight or measure, and the value thereof, if the applicant makes an express demand to that effect in the application for the issue of the warrant, or subsequently, by means of a note; in any such case the value shall be stated upon an appraisement made by one or more experts appointed by the court.

Manner of executing warrant.

841. The things so described shall remain in the custody of the person in whose possession they are found, and such person shall be responsible for their safe keeping, an express injunction to that effect being included in the warrant.

842. It shall be lawful for the court, upon the application of any party notice whereof is given to the other party, to give any order calculated to prevent any loss, damage or deterioration of the things described.

843. (1) The applicant is bound to bring the action in respect of the right stated in the warrant within twenty days from the issue of the warrant:

Provided that where the issue of the warrant is demanded by any spouse against the other spouse, and the spouse issuing the warrant has commen ced proceedin g s in court, the time limit herebefore m en tioned shall comm ence running from such date when that spouse is authorised to proceed by the court, provided that the warrant shall cease having its effect immediately upon the proceedings being withdrawn or abandoned.
(2) If the applicant fails, without just cause, to bring such action, the effects of the warrant shall cease and he shall be liable for all damages and interest.

Liability of person in possession of things described.

Power of court.

Time within which to bring action. Amended by:

XII. 1924.6; XXVII. 1977.3;

XXIV. 1995.314; XXII. 2005.68. Substituted by:

XIV. 2006.89.

844. Where the party against whom the warrant was executed shall, by means of a note filed in the registry, allow to the applicant a time longer than that mentioned in the last preceding article, the warrant shall remain in force for such extended time.

845. The provisions of articles 275, 276 and 279, shall apply to the execution of a warrant of description.

Extension of time.

Applicability of articles 275, 276 and 279. Substituted by: XV. 2006.90. Amended by:

VII. 2007.30.

Warrant of seizure.

Amended by:

XI. 1859.37;

IX. 1886.103;

XII. 1924.7;

XXXI. 1934.67;

XXVII. 1977.4;

XLIX. 1981.6;

XIII. 1983.5;

XXIV. 1995.315.

Substituted by:

XIV. 2006.91.

Amended by:

VII. 2007.30.

Sub-title II

OF THE WARRANT OF SEIZURE

846. (1) The warrant of seizure of movable property shall, other than the details refer red to in ar ticle 282, also contain an order to the Registrar to seize from the debtor such articles or article from the place therein indicated.

Official consignee. (2) When a demand is made for the removal of the seized articles the court shall appoint an official consignee.

Applicability of articles 275 to 293,

842 to 844.

(3) The provisions of articles 275 to 293 and articles 842, 843 and 844, shall apply to warrants of seizure.

Judicial acknowledgement of claim to precede judicial sale by auction.

Amended by: XXIV. 1995.316;

XIV. 2006.92.

847. The judicial sale by auction of the property seized shall not ta ke place without a pre v ious judic i a l ac knowledgment or rendering as an executive title of the debt or claim:

Provided that in the case of perishable goods or other deteriorating assets, the court, on the application of claimant in pending litigation before the court, may order the sale of the asset pendente lit e if i t appears to the court upon an application of a creditor that the debtor is insolvent or otherwise unlikely to be able to con t i n u e tr ad in g an d main tain in g th e asset . I n reach i n g its conclusion the court shall consider all the circumstances connected therewith including the nature of the claim, if any, and such other steps which the debtor has taken to secure the claim, or otherwise to preserve the asset.

In inferior courts demand for judicial acknowledgment

of claim to accompany

demand for issue of warrant.

Amended by:

XV. 1913.158, 159;

XXIII. 1971.29;

XIII. 1983.5;

XII. 1985.18;

VIII. 1990.3;

L.N. 407 of 2007;

XIV. 2006.93.

848. Saving the provisions of articles 466 and 467 respecting the claims of the Government, no warrant of seizure shall be issued by the Court of Magistrates (Malta) or by the Court of Magistrates (Gozo) in its inferior jurisdiction, unless the warrant is sued out accompanied by a demand that the credit or claim are judicially acknowledged and the debt or claim exceeds one thousand, one hundred and sixty-four euro and sixty-nine cents (€1,164.69), or the demand for such warrant is for an article which, as stated, is property belonging to the person suing out the warrant.

Added by: XIV. 2006.94.

Sub-Title III

OF THE WARRANT OF SEIZURE

OF A COMMERCIAL GOING CONCERN

Scope of warrant.

Added by:

XIV. 2006.94.

848A. (1) A precautionary warrant of seizure of a commercial go ing concern m ay sol el y be issued t o secure a d ebt or claim s

which could be frustrated by the sale in part or in whole of the said going concern and, for this purpose, no other warrant may be issued against the going concern, unless it is this warrant of seizure.
(2) The effect of a precautionary warrant of seizure of a commercial going concern is to preserve the totality of the assets of the going concern, including licences and good-will, to order that same is not sold in part or in whole and are to be concurrently kept in business, provided that in any case the court shall not accept a demand for the issuing of a warrant if it is satisfied that there are other means to safeguard the amount due.
(3) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to protect the rights belonging to applicant wh o, prima facie, appears t o have su ch rights.
(4) The provisions of articles 840, 842, 843, 844 and 848 shall apply to this warrant.

848B. (1) When a demand is made for the issue of this warrant the court shall, after hearing the parties, appoint an administrator and in order to effect such action it shall consider whether to allow the going concern to continue being run by the debtor or by such persons as may be entrusted by the debtor with the assistence of the adminis trator, or th at an administrator is appointed who in the opinion of the court has the necessary qualifications to run and administer the going concern on his own.

(2) The court shall appoint an expert under article 89 and establish a short and peremptory time within which there shall be filed an itemized list, to be confirmed on oath, of the value of the who l e property forming the capital of the commercial g o ing concern.
(3) The appointed administrator shall be responsible for the commercial going c onc ern and shall have the right to se ll and administer the ordinary running of the concern provided that for any decision of an extraordinary nature he shall file a demand in court for the granting of such authorisation.
(4) The administrator may, if he is of the opinion that the going concern will incur a market loss in i ts valu e, d emand the co urt either to authorise him to sell the whole going concern or any part thereof.
(5) The administrator appointed under this article shall have the right to such payment as the court may, in its discretion, be of the opinion that is due to him in consideration of the value of the going concern and of the activity undertaken with regard to the running of the business.

Court to appoint administrator and expert.

Added by: XIV. 2006.94.

Amended by: XIV. 2006.95.

Sub-title IV

OF THE GARNISHEE ORDER

Precautionary garnishee order. Amended by:

IX. 1886.104; XXVII. 1977.5;

XIV. 2006.96.

849. The effects of a precautionary garnishee order are the same as those of an executive garnishee order, and the provisions of articles 375 to 383 inclusive, and articles 842, 843, 844, 846 and

848, shall apply to such order:
Provided that where the garnishee is a bank, a precautionary garnishee order shall not apply to money payable by the bank in execution of any guarantee given by the bank that it will effect payment on the demand of the person in whose favour the banker ’s guarantee is made out; and in any such case, notwithstanding the garnishee order, the bank shall have power to pay out or otherwise dispose of any such money as free from any garnishee order and shall also be entitled to withdraw any such money from any cour t or ot her place, or from any person, into which, or with whom, it may have been lodged or deposited, and it shall be the duty of the Registrar of such court or other person in possession or having control over such money to return it forthwith to the bank.

Duration of garnishee order. Amended by: XXXI. 1934.68; XXIV. 1995.318.

Order for judicial sequestration. Amended by:

XIV. 2006.97.

Statement as to nature, etc., of claim not requisite.

850. Repealed by XXXI. 2002.179.

851. (1) The court may, at any stage of the cause, on the demand of either of the parties, or of its own motion, make an order for judicial sequestration.

(2) The sworn statement referred to in article 831(2) shall not be requisite in regard to any such sequestration.

Duration of order. (3) The sequestration order shall remain in force until rescinded by the court.

Power of court. (4) Under such order, the court may direct that the thing in litigation be deposited with, or delivered to a third party who shall bind himself to restore such thing, on the termination of the cause or within the time fixed by the court, to the party to whom the court shall order the thing to be restored.

Sequestration order in regard to immovable property.

Judicial sequestrator.