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Constitutional Law

Judge pins court delays on government, abusive defendants and their lawyers

By March 25, 2023September 7th, 2023No Comments

In a judgment delivered by the First Hall Civil Court (Constitutional Jurisdiction) in the names Francis E. Sullivan & Company Limited vs L-Avukat tal-Istat presided over by Honourable Justice Dr. Francesco Depasquale on the 9th March 2023, the Court decided that the length of time taken to conclude a court case is unreasonable and violates the right to a proper and reasonable hearing as provided by Article 39 of the Constitution of Malta and Article 6 of the European Convention of Human Rights. The Court criticised the Government for its lack of investment in the Court’s resources and admonished the defendant company and its lawyers for taking advantage of such deficiencies.

Francis E. Sullivan & Company Limited instituted this constitutional case on the basis of a violation of Article 39 of the Constitution and Article 6 of the European Convention on Human Rights as transposed in Chapter 319 of the Laws of Malta due to lack of reasonableness in time, and delay to appoint and conclude a court case at appeal in the names Francis E.Sullivan & Company Limited vs International Catering Srl.

Back in July 2015, Francis E. Sullivan & Company Limited instituted a case in the First Hall Civil Court against International Catering Srl where it contested unpaid invoices amounting to €98,848.29. The Court in the first instance had decided in favour of the plaintiff within 3 months. International Catering Srl appealed this judgment. However, the appeal was appointed on the 13th October 2020, that is 5 years after the application for appeal was instituted.

The appeal had to be served to the appellants in Genoa, Italy. International Catering Srl, did not appear for the first hearing and the appeal was deferred to the 1st December 2020, whereby the appellant did not show up again. At this point the Court deferred the next sitting to the 5th October 2021. During this sitting, it resulted that the appellant International Catering Srl did not deposit the security money to cover the costs of the appeal and the Court deferred the case sine die (with no appointed date for resumption).

The First Hall in its Constitutional Jurisdiction stated that it was clear that the delay in the hearing of the appeal was solely attributable to the appellant company International Catering Srl with the assistance of its legal advisers. Undoubtedly, it was using its right to appeal as a strategy to waste time and delay its payment as decided by the Court in the First Instance.

In fact, Francis E. Sullivan & Company Limited argued that due to this delay of over 5 years in appointing the appeal, it could never be paid by the debtor company because at no stage did it possess an executive title. It was also submitted that while it was true that the applicant company was invited to compete as a creditor of the foreign company in bankruptcy proceedings in Italy, the applicant company could never declare itself a creditor because at the time when the letter of concurrence was sent, that is, in September 2016, the debtor company had appealed from the judgement of the First Hall in Malta for almost a year and therefore the claimant company did not have an executive title. The claimant company could not declare itself a creditor of the debtor company because it was still waiting for the appeal in Malta to be appointed.

After analysing the submissions of the applicant and the arguments of the State Advocate and referring to previous jurisprudence, the Court considered that the claimant company’s complaint regarding the delay in the appointment of the appeal is justified and proceeded to declare a violation of the Article 6 of the European Convention and Article 39 of the Constitution of Malta.

Furthermore, the Court not only upheld the case but added its observations. It stated that the Courts of Justice are severely conditioned from the lack of investment, for which the Executive branch of the State is uniquely responsible, that is the Government. Although in the last decades the number and complexity of cases instituted in the Courts had increased considerably, this was never reflected in an adequate increase of investment in the Courts.

Citizens have a right to receive such a service within a reasonable time, hence the Judiciary has a right to pretend and be provided with all the tools and resources from the Executive to provide such service. It is the Executive which should answer for such failures, as it is the Government that decides which resources are allocated to the Courts to operate in an efficient manner.

It is clear that the Executive is still very much conservative in such an investment, that includes the number of Judges and their staff which is lower than any other European Union member state, and also the physical space needed by the Courts. In addition, the Court also admonished the defendant company and its lawyers stating that although it is truly disgraceful that the claimant company, as an entity that had the right to claim service from the Courts in a reasonable time had to wait more than six years for its case to be finally declared enforceable, it is just as disgraceful the brazen and impudent abuse of persons and particularly certain lawyers who abuse from these deficiencies caused by the Executive, in order to obtain benefits in favour of their clients, adopting such procedures only to prolong the outcome of the final decision.

The Court claimed that this is being said as it is not fair and correct that the State should bear all the consequences of this situation that clearly has been knowingly abused by the debtor company with the assistance and direction of its legal advisor, and this should be reflected in the damages being liquidated. Thus, the Court considered that the State Advocate should not bear all the responsibility for the delay.

Finally, the Court liquidated the sum of €4,500 to be paid by the to the claimant company due to the flagrant violation of its right to a proper hearing within a reasonable time.

Lawyers Cedric Mifsud and Ian Barbara assisted the applicant company.

Av. Malcolm Mifsud


The article may also be accessed on Maltatoday 

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