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Court will use principle of proportionality to determine whether a party can appeal a judgement in parte

By March 6, 2020November 24th, 2023No Comments

Article 231 of the Code of Organisation and Civil Procedure (COCP) states that where several issues in an action have been determined by separate judgements, appeal from any such judgement may only be entered after the final judgement and within the prescribed time. However, the proviso to this article states that an appeal from such separate judgement may be entered before the final judgement only by leave of court to be read out in court.

The Court will decide an application based on this Article in a restricted manner, in order to reflect the legislators’ intention to only allow such appeals from partial judgements in the interest of the expediency of certain cases.

This was held by the First Hall Civil Court presided by Hon. Judge Grazio Mercieca on the 13th of February 2020 in the case Dragonara Gaming Limited vs Is-Segretarju Permanenti tal-Ministeru responsabbli ghall-Finanzi et. The Court heard the pleas by the defendant, who argued that because the partial judgement was given in relation to a pre-emptory plea, that the Court should allow them to appeal in the interest of expediency.

It was explained by the Honourable Court that through the amendments by Act XXIV of 1995, the decision on whether to appeal from a partial judgement or to appeal from the decree after the final judgement was given to the parties. Nonetheless, the Court was given the discretion to decide whether to allow this appeal of a partial judgement before the final judgement or not based on the principle of proportionality.

Although the law gives no criteria on which the adjudicator should base the decision, it was explained that the legislator intended to limit the delaying of cases through appeals of partial judgements and therefore they should only be allowed in exceptional circumstances.

Quoting the jurist Lord Woolf MR, it was explained that the conclusion of a case in a reasonable time should be the ‘overriding objective’ of the adjudicator as it is a fundamental human right. It was stated that civil cases should ‘[embody] a three-dimensional concept of justice which incorporates the arriving at of judgements that are correct in fact and in law, by means of proportionate use of resources and within a reasonable time’. Therefore, the Court should only allow appeals from partial judgements if it deems it proportionate in relation to the risk of a case taking longer than it should to be decided.

The Court held that it cannot be said that the adjudicator should decide to allow an appeal from a partial judgement simply because the sentence being appealed from regards a peremptory plea. It was reasoned that this is because if that would have been the legislators’ intention, they would have drafted the law in such a manner. Furthemore, The Court stated that another important principle is that of prejudice to the party requesting the appeal from the partial judgement. It was held that this concept of prejudice to one of the parties is not one which is alien to civil law, such that the COCP mentions a number of situations wherein the adjudicator should decide whether to allow a plea based on whether rejecting the plea will cause more prejudice to the applicant than to the other party.

It was held that in this case, since it was a commercial case, the applicant, being a Government entity, could not claim that it would suffer economic prejudice should the appeal not be heard immediately.

Therefore, the Court rejected the application and ordered the case to be continued.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates