The Court has the discretion to impose a penalty on a party that issues a precautionary warrant however, this must be done in order not to allow the abuse of these warrants. This was held in a decree issued by he First Hall of the Civil Courts presided by Mr Justice Francesco Depasquale on 11 March 2021 in Michael Vella and Stephen Anthony Camilleri -v- Philip Camilleri, Peter Paul Camilleri and Maria Pisani.
The Philip Camilleri, Peter Paul Camilleri and Maria Pisani, the Applicants, filed an application asking the Court to revoke a garnishee order and to impose a penalty on Michael Vella and Stephen Anthony Camilleri for issuing this garnishee order. The Applicants explained that applied for a garnishee order for €22,000 in May 2020 and a warrant of prohibitory injunction in June 2020 in order to protect their share of the inheritance of Francis Xavier Camilleri their grandfather, The evidence produced in the court case on the division showed the value of the estate. The Parties to this action are all relatives. Michelle Vella and Stephen Camilleri are the children of their later father Anthony Camilleri. On the other side Peter Paul Camilleri, Philip Camilleri and Maria Pisani of his siblings and are all the children of the deceased Francis Xavier and Olga Camilleri. Since there are four children, each are to inherit one forth of the estate. However, the parties have a different interpretation of the will, since the will does not indicate Michael Vella and Stephen Anthony Camilleri as heirs. The Applicants are claiming that the two warrants exceed by far what the Defendants may inherit.
The Defendants replied by agreeing that there is a dispute on the interpretation of the will of Francis Xavier and Olga Camilleri, which includes immoveable properties. The warrants were filed after the applicants signed the causa mortis in September 2019. The Applicants’ father died before his own father and therefore, the only heirs are the surviving children. They argued that they were correct to issue the warrants and a counter warrant should not be issued.
The Court pointed out that this application is based on Article 836(1)(f) of the Code of Organisation and Civil Procedure. In a previous judgement Joseph Camilleri -v- Anthony Gove, the court held that Article 836 states that the court has to examine whether it should permit a counter-warrant if there is prima facie evidence. The merit of the case should be examined in detail in the lawsuit. In another court case CMK Assets Ltd -v- Beacon Light Ltd, held that if the Court finally decides against the plaintiff, it does not mean that the precautionary warrant was not legally correct. The precautionary warrant procedure and the action on the merits of the case are separate in nature.
Article 836(1)(f) of the COCP states that a counter warrant may be issued:
“(f) if it is shown that in the circumstances it would be unreasonable to maintain in force the precautionary actin whole or in part, or that the precautionary act in whole or in part is no longer necessary or justifiable”
In Taormina Holdings Limited -v- Biochemicals International Limited decided on 30 October 2003, held that when granting of a precautionary warrant it is not necessary to prove that the credit is in fact owed, but it is sufficient for the applicant takes an oath that he is a creditor of the defendant. On the other hand, a counter-warrant will not be issued simply because it will cause a prejudice. In this particular case the Applicants are claiming that the warrant is not reasonable, because money was being held when property was already being held. The Defendants argued that the warrant of prohibitory injunction just covered their share of the inheritance with regard to the property and the garnishee order cover liquid assets of the estate. The Court agreed that prima facie this was the case.
As to the request for the Court to impose a penalty of the defendants, it quoted from Joseph Tabone -v- Capece Construction Limited, decided 14 August 2013 wherein the Court held that the Court has a discretion to impose a penalty. The Court would have to be satisfied that the warrant was demanded in one of the circumstances mentioned by the law. This is a matter of public order aimed as giving assurance that the judicial process is not abused of. Mr Justice Depasquale held that in this particular case, there was none of the circumstances mentioned by the law.
The Court then moved to reject the application.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
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