Bill aims to speed up court procedures

The House of Representatives yesterday started debating a bill aimed at speeding up certain procedures before the law courts and reducing the backlog of cases.

Parliamentary Secretary Carmelo Mifsud Bonnici, who moved the bill to amend the Code of Organisation and Civil Procedure, said this was one of a series of steps aimed at improving the situation at the law courts, particularly the long time it took for cases to be decided.

Figures published in April showed that there were 14,000 pending civil cases before the courts and tribunals, including 5,000 pending for over five years.

Most, 82 per cent, were pending before the First Hall and magistrates. Some 1,000 cases had been pending for 10 years and more.

The government was mindful of the distress, anger and inconvenience caused to the public when cases were repeatedly put off. Delays also affected the economic as well as the social sectors.

It needed to be accepted that the strict formalism of the local courts was causing delays in dispute resolution and needed to be reduced.

Various measures had been introduced over the years to improve the situation, including changing the competence of the courts through the raising of the competence of the Small Claims Tribunal to cases of up to Lm1,5000 and the competence of the Magistrates' Court to Lm5,000.

Although the number of cases before the First Hall had dropped, overall, the number of cases before the Superior Courts, the Magistrates' Court and the Small Claims Tribunal had risen.

The tribunal now had so many cases before it that some delays were creeping in, with some cases taking from three to four years to be decided. This was worrying.

This bill was meant to simplify procedures, tackle the reasons for the delays and introduce new practices so that, for example, certain pockets of cases could go before the Arbitration Centre or elsewhere. The current position was that a court case over an Lm80 phone bill had to go before the Small Claims Tribunal, a procedure which involved costs to the state and the people and time wasting for both.

This bill was creating a fast track for some cases, on the basis of successful experiences abroad.

This bill was not meant to reduce work before the courts but to give remedies to people who were put off from going before the courts, despite being in the right, because they were discouraged by costs and delays.

The government's ultimate aim, difficult though it was, was for court cases not to last longer than three years.

The current situation was that the number of cases taking more than five years to be decided was increasing.

He had heard criticism of this bill, and his appeal to the conservative sectors within the legal profession was to embrace change and progress.

The number of judges and magistrates had been doubled over the past few years, but that had not brought about enough change and people still felt frustrated by the courts.

The first measure this bill would introduce was a fast track procedure. In actions for the recovery of a debt that was certain, liquidated and not exceeding Lm5,000, one could file an official letter stating his reasons for the request.

This would be served to the other party. If the other party decided not to contest and 30 days passed, the official letter would have the same effect as a court judgment. Where only part of the claim is admitted, the official letter would be admitted to the extent where it is was not opposed.

This measure was found necessary because at present, several court cases were not contested, but the judge still had to waste time to write the sentence, also increasing the case costs.

Dr Mifsud Bonnici said the bill included provisions on how lawyers were paid when cases were settled through an official letter.

The second measure would involve bills of exchange. Today the bill of exchange was almost meaningless, still leading to the institution of a lawsuit. Through the bill, a judicial letter would make the bill of exchange executive within two days. This was the same procedure adopted today by whoever was owed money. In this case too, there would be changes in payment to the lawyer.

The third measure involved longstanding cases of a value between Lm1,500 and Lm5,000 which were currently still before the Superior Courts. An application could be made for these cases to be sent to the Magistrates' Court. If left in front of the Superior Courts the case, once decided, would be taxed on the value of Lm5,000. This would provide a remedy for those whose cases had been too long in front of the Superior Courts.

The fourth measure would seek to give the Arbitration Centre more weight. The centre had worked well, but its services were still not used by several lawyers who had not yet seen its advantages. Certain cases falling under the Condominium Act were already channelled to the centre and were settled within six months or less, with the resultant less costs.

Cases of traffic incidents involving damages of less than Lm5,000 and no personal injuries would now go for arbitration.

Sending such cases to arbitration would speed things up immeasurably.

It was only in Malta where arbitration was not yet on a strong footing, even though it had the force of law. The problem was that many lawyers had continued to use age-old systems even though so many amendments had been made to the civil code.

He hoped both sides of the House would see the reasoning behind the bill to cut down on formalism and excessive delays in court.

Opposition justice spokesman Anglu Farrugia said the Opposition was strongly against this bill. Its provisions on the new procedure using official letters was a "dangerous adventure", while the provisions on the arbitration centre were "dangerous" and recourse to arbitration should not be mandatory.

Legal safeguards were needed so as not to create injustices, and it needed to be ensured at all time that all cases had a fair hearing and there were no grounds for abuse. Care must be taken not to bring upheaval into what had traditionally worked well in Malta's courts.

The first contradiction was in the measure whereby an official letter could be enough to settle a case on outstanding claims without even going to court.

Dr Mifsud Bonnici's arguments sounded good, but were not practical. They would add power to whoever wanted to play around with the law. An official letter could be sent to someone at the wrong address and be seen to have been delivered, just as Maltacom had sent judicial letters to several subscribers who had moved house without notification, yet procedures had continued.

There seemed to be a lack of communication between the government and the Chamber of Advocates. Interjecting, Dr Carmelo Mifsud Bonnici said the chamber had been informed of the bill as long as a year ago.

Continuing, Dr Farrugia said the efficacy of the proposed measure could not be guaranteed. If a debtor opposed a claim he would have to foot the eventual costs.

The Commission for the Administration of Justice itself had criticised the way the defendant was being made to pay the legal costs.

Care must be taken to see that whoever was owed money could recoup it quickly, but the fast track system could still be abused of. Lack of contestation by the defendant should not be taken lightly but effective notification must be checked out.

Furthermore, the new procedure removed the possibility of another hearing for the same case, which was allowed in certain particular cases.

Dr Farrugia described as "insane" the proposal to make arbitration mandatory for certain cases, insisting that arbitration was supposed to be sought after agreement by both parties. There should be no forced arbitration between two parties that did not agree to go to arbitration.

Although it was true that the arbitration centre had settled several cases speedily, there were other cases that had been there almost a year. It could not now be burdened with the volume of traffic accidents simply in an effort to speed things up.

Dr Farrugia drew a parallel with the Family Court, where couples were appearing before the mediator only to be advised to talk to their respective lawyers.