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A court may not be competent to hear a counter-claim because that claim is lower than the threshold in which the court may hear cases. This was decided by the Magistrates’ Court, presided by Magistrate Victor Axiaq in RX Construction Limited -v- Jesmond Friggieri. The plaintiff company is suing the defendant, Jesmond Friggieri for €10,182.50 for construction works carried out in a property in Mosta and for loss of earnings when the company was stopped without a valid reason at law.

Friggieri argued that the works were not carried out according to professional standards and filed a counter-claim of €5,000 for damages, as he had to engage another construction company to finish the job. RX Construction Limited filed a statement of defence for the counter-claim and pleaded that the Magistrates’ Court was not competent to hear the counter-claim and the claim should have been presented before the Small Claims Tribunal. This plea falls under Article 741(b) of the Code of Organisation and Civil Procedure.

The Plaintiff Company held that the counter claim of €5,000 is less than the Magistrates’ Court’s competence and should be dealt with by the Small Claims Tribunal. The defendant held that it does not make sense that the action should be divided into two different courts. The Plaintiff Company quoted from Jason Azzopardi -v- Marija Bartolo decided by the First Hall of the Civil Court on 12 March 2019. This case concerned the removal of a garnishee order after Marija Bartolo filed for a counter-claim of €15,000, which claim falls under the Magistrates’ Court and not the First Hall of the Civil Courts.

The Court upheld the application to revoke the garnishee order and argued that ignore its competence on the basis that the claim is in fact a counter-claim of a larger sum. The main claim does not force a court to hear a counter-claim if that Court is not competent. In another judgement Gheiti and Sons Limited -v- Perit Arkitett Colin Zammit decided by the First hall of the Civil Court on 19 May 2011. In this judgement the court held that the claim and counter-claim are in fact two actions, which can have an independent existence. Therefore, if the Court is not competent to hear, then this point cannot be ignored because it would duplicate the actions. Magistrate Axiak pointed out that the Plaintiff Company is claiming payment for works it carried out and for loss of earnings. The defendant put up a counter-claim. This falls under Article 396 of the Code of Organisation and Civil Procedure (COCP), which reads:

“In any action, it shall be lawful for the defendant to set up a counter-claim against the plaintiff, provided the claim of the defendant be connected with the claim of the plaintiff as stated hereunder

(a) if the claim of the defendant arises from the same factor 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”

Article 397 of the COCP stated that the claim and counter-claim are to be held in one action and to be decided together.

Therefore, in this case the basis of the claim and the counter-claim were derived from the same contract. The Court quoted from the Italian Code of Civil Procedure, where a judge will hear both the main claim and counter-claim, unless there is an issue on the competence of the court. If the counter-claim exceeds the competence of the Italian Court, then the action may be referred to the superior court or else separate the claim and counter claim. There is no such provision in Maltese legislation.

Article 744 of the COCP states that a counter-claim extends the jurisdiction of the Court but not the competence. It makes clear that the counter-claim may be referred to another Court. The Court was of the opinion that this may take place when the counter-claim has a different value of the Court it is before.

The Court disagreed with the Defendant who argued that the counter-claim was worded “€5,000 or any other sum”. Although any other sum could be more or less than €5,000, this still falls under the competency of the Small Claims Tribunal.

Magistrate Axiak then discussed what to do with the case if it finds that it does not have the necessary competency to continue to hear the counter-claim.

The 2016 and 2018 amendments to the COCP allow the Court to order that the acts of the case be transferred to another court or tribunal, but if that court or tribunal do not agree that it is competent, then the acts are sent to the Court of Appeal to decide which court should hear the case. The Court, in the case, said since the claim and counter-claims are two different actions, it will transfer the acts by means of a separate decree.

The Magistrates’ Court then moved to uphold the plea of lack of competence.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates 

This article is available on MaltaToday

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