Bill aims to overcome 'crisis' in enforcement of court judgments

Various changes to a Bill amending the Code of Organisation and Civil Procedure were suggested by Nationalist MP Mario de Marco when the House continued to consider the Bill yesterday.

The main purpose of the Bill is to reform the operative methods of executive and precautionary warrants and to introduce new ways of enforcement of court judgments.

Dr de Marco said the need for this Bill was shown by the fact that the legal system was going through a crisis in that court sentences sometimes could not be enforced.

Nothing could be worse, and more frustrating, than to have a case upheld at the end of a process lasting years, only to find out that no effective remedy could be provided. This struck at the core of the democratic system and had serious implications for society at large, particularly the business community.

Court judgments could sometimes not be implemented because a debtor had no funds or assets, but on several occasions the problem lay in complicated and often expensive procedures which made enforcement of a judgement very difficult and time-consuming.

The Chamber of Advocates had generally welcomed the Bill but had suggested some changes with which he agreed.

For example, the Chamber was suggesting that in the case of warrants of seizure of movables, when items were removed by the executing officer (formerly known as the marshal) after forced entry, the items should be photographed on site to avoid complaints about their state later.

The Chamber was also rightly arguing that registers and minute books of notaries should under no circumstances be subject to a warrant of seizure, not least because they were of public use and involved third parties.

When a court expert was appointed for purposes of valuations, it was felt that a deposit should be made immediately to cover the expert's fees.

Dr de Marco observed that items which were not wholly owned by the debtor could also be subject to a warrant of seizure. Such items could not be sold before the division between the co-owners was made.

It was good that henceforth the executing officers would not receive part-payments from debtors, a situation which practically used to lead to the suspension of the execution of warrants. The Bill laid down that payments to the executing officer could only be made in full.

Dr de Marco suggested that the Bill should include a time limit within which the co-owner should act for this division to happen. When no action was taken the sale should go ahead, with the court then deciding on how the funds should be apportioned.

Earlier in the debate, Labour MP Joe Sammut said that one of the nightmares in court was the execution of warrants.

Although the law was generally sound, the problem lay in the mechanics of its implementation. Responsibility for the execution of warrants should remain with the judges, and the judges should have enough trained personnel to follow up judgments and ensure they were implemented.

Dr Sammut insisted that court judgments needed to be observed promptly, even by government organisations. For example, a George Farrugia had won a case against Enemalta after a sub-station was built on his property but no one wanted to take responsibility to turn off the power from the main power station so that the substation could be decommissioned.

Dr Sammut said he agreed with the amendment that property subject to a judicial sale by auction could not be sold at under 60 per cent of its value. It had been scandalous that property used to be sold for peanuts.

Turning to other aspects of the administration of justice, Dr Sammut said that cases of small claims which used to be considered by magistrates had now been passed on to the Arbitration Centre and the Small Claims Tribunal, but a backlog had built up there, causing stagnation. This situation needed to be tackled.

The Labour MP also complained over high court tariffs, saying this was causing situations where some people did not go to court.

The tariffs needed to be revised, especially in cases relating to inheritance and property.

Justice and Home Affairs Minister Tonio Borg said small claims were now being decided more quickly and with less costs.

Turning to the Bill, Dr Borg said one could not guarantee that a creditor would get his money back on winning a court case, especially when the debtor had no assets or funds. This Bill, however, was aimed at plugging loopholes created along the years which had also hindered the enforcement of judgments.

The Bill was safeguarding the rights of both debtors and creditors. It had not been right that an immovable property was sold for less than 60 per cent of its value.

It was also wrong for the court valuer's fee to depend on the value of the property. Architects should be paid their dues, but their tariff should not necessarily be related to the value of property as this could lead to abuse.

Dr Borg said professional auctioneers would be given the opportunity to operate in the sector.

The minister highlighted new aspects of the Bill, including the way that warrants could be issued against companies as going concerns. The system of judicial sales by auction was being made more efficient and quicker.

Labour MP Joe Brincat hit out at the way the Bill was drafted. For example, the Bill was deleting articles 252 to 271 of the Code of Organisation and Civil Procedure. But article 253 was amended in 2004 to introduce the system where debt could be recovered through an official letter which became an executive title if it was not contested within 30 days.

One article of the Bill was introducing a number of new articles which a later clause was then deleting.

Such stupidities did not leave a good impression.

Bills needed to be carefully examined before they became law. There were too many cases where laws were being amended only to be deleted by other laws enacted shortly thereafter.

Dr Brincat also complained about the fees charged by architects appointed to assess the value of property.

He said that in other countries, judicial auctions were not carried out by private auctioneers but under the surveillance of judges. Offers had to be made in the presence of the judge, who also had to monitor the auction. This was a situation which had to be considered.

The Labour MP insisted that people living in a property and paying for it by instalments should not be subject to eviction if that property changed hands after a judicial sale by auction, as they were completely alien to the situation and they were paying their dues.

If one was not careful and eviction were to be permitted in all cases, property in Malta would soon be all owned by the banks.

Other speakers will be reported tomorrow. The Bill was later given a second reading without contest.