COVID-19 Pandemic Not A Lawful Excuse For Justifying Contumacy – Civil Law


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The First Hall Civil Court (the “Court”) presided by
Mr Justice Neville Camilleri on the 6 July 2022, in the case
Kunsill Malti għax-Xjenza u t-Teknoloġija
vs. Access UK Limited
” held, among other things,
that the plea of the COVID-19 pandemic alone, at a time when
restrictions were being eased, did not justify a party’s
contumacious state.

The facts, in this case, were as follows:

On 13 November 2019, Kunsill Malti għax-Xjenza u
t-Teknoloġija (“Plaintiff”) filed a sworn
application before the Maltese courts against Access UK Limited
(“Defendant”), whose offices were situated in the
United Kingdom.

The service of Plaintiff’s sworn application in the United
Kingdom had to comply with Brussels Regulation 1393/2007 on the
service of judicial and extrajudicial documents in civil or
commercial matters documents between member states. Each member
state may designate a transmitting agency and a receiving agency,
whose function is to receive the judicial documents sent by another
member state, and to effect service in such member state.

In this Case, the receiving agency was located in the UK and the
transmitting agency was in Malta.

It so happened that the UK Agency did not manage to effect
service of the sworn application within one month of receipt.

Under Article 7(2) of the Regulation, the UK Agency, if unable
to effect the service of the document within the one month time
limit, had to inform the Maltese Agency by drawing up a
‘Certificate of Service or Non-Service of Documents’.
In the circumstances, the UK Agency’s issued the Certificate
on 7 August 2020.

The Court now considered the Defendant’s application,
which was filed during the proceedings on 2 March 2022, well after
the expiry of the statutory period to present written pleadings. In
its application, the Defendant submitted that the Certificate was
not drawn up in conformity with statutory template provided in the
Annex of the Brussels Regulation and that it was not properly
notified of Plaintiff’s original sworn application.

The Defendant further argued that the COVID-19 restrictions in
the UK, during July 2020, disrupted its operations in a way that
rendered the service of judicial documents, as required by law, not
possible.

It said that it had to make arrangements with the local post
office for its mail to be processed differently and that these
arrangements impeded its ability to receive judicial documents
according to law.

In this respect, taking these factors into account, the
Defendant maintained that it had valid reasons to justify its state
of contumacy.

In reply, the Plaintiff remonstrated that:

  1. the Defendant did not earlier attempt to justify its
    contumacious state. For a legal representative had appeared in a
    number of court sittings, without ever raising any defence to its
    state of contumacy;

  2. The COVID-19 pandemic plea is not a valid justification for
    Defendant’s contumacious state; and

  3. That the Defendant was properly notified of the original sworn
    application. This meant that the relevant articles concerning the
    notification of sworn applications in the Code of Organisation and
    Civil Procedure, Chapter 12 of the Laws of Malta were not
    applicable.

The Court pointed out that although a legal representative on
behalf of Defendant had first appeared on 14 July 2021, it was only
on the 17 November 2021 that the Defendant attempted to excuse its
state of contumacy.

As regards ‘contumacy’ whilst Article 158(1) of
Chapter 12 of the laws of Malta specifies that a defendant has to
file his sworn reply within twenty days from the date of service,
it refrained from imposing a time-limit within which a party can
justify its contumacy.

Reference was made to a number of judgements where the Maltese
courts held that the renunciation of a right had to be clear and
unequivocal, leaving no doubt as to a party’s intentions to
renounce such right.

In this case, it was not amply evident that Defendant renounced
its right to justify its state of contumacy and for this reason,
the Court rejected the Plaintiff’s plea.

As regards the validity or otherwise of the Certificate, this
Court said that it had to ascertain whether the defect was
sufficiently grave to nullify it; and whether the UK Agency had
effected service in the required manner.

A person can only be considered to be contumacious according to
law, if s/he had been validly notified of the sworn
application.

A plaintiff’s omission to mark the Certificate with a
particular number, as required, did not prevent the Defendant in
any way from filing his reply within the time-limits, indicated the
Court.

In ‘Catlin Europe SE vs. O.K. Trans Praha spol.
s.r.o.’ (06/09/2018) it was held that “it is
settled case-law that failure to attach the standard form in Annex
II to Regulation No 1393/2007 cannot render invalid either the
document to be served or the procedure for service, as that
consequence would be incompatible with the objective pursued by
that regulation, which consists in providing a direct, rapid and
effective means of transmission between Member States of documents
in civil and commercial matters.”

The UK Agency had to immediately inform the Maltese Agency, as
the transmitting agency, by means of the Certificate that service
was not effected, and in addition, it had to continue taking all
the necessary steps to effect the service of the document.

The Court found that the UK Agency fulfilled its obligations and
that the notification of the Certificate was to be deemed to be
valid in this case.

In determining the Defendant’s plea to justify its
contumacy in the light of COVID-19 restrictions, the Court made
reference to ‘Vittorio Cassar vs. Carmel Vassallo’
(29/05/1937), for guidance. In this case, the Court laid down
principles when contumacy was excused, in particular:

  1. Contumacy cannot be considered as excusable if it is
    voluntary;

  2. Contumacy cannot be justified if an element
    of culpa (negligence) subsists on the part of
    the defendant;

  3. For contumacy to be justified, the defendant must prove a just
    cause to the satisfaction of the court, which has to be equivalent
    to a legitimate impediment;

  4. The legitimate impediment must be independent from the will of
    the party who is in contumacy;

  5. To qualify as a legitimate impediment, the justification cannot
    be an easily avoidable mistake;

  6. The legitimate impediment must amount to the physical
    impossibility to make an appearance before the court, although in
    exceptional circumstances, moral impossibilities might be
    considered as a legitimate impediment.

This Court took into consideration all factors, in particular
the impact of the COVID-19 pandemic on the Defendant’s
ability to be served with the sworn application. However, the Court
could not ignore the fact that it was presented with a Certificate
from the UK Agency which confirmed that the notification was
properly made. Moreover, when the notification was made in the
month of July 2020, the national COVID-19 restrictions in the UK
were already partially lifted. The fact that the Defendant still
chose not to revert to their usual way of operations despite the
partial removal COVID-19 restrictions could not be considered as a
legitimate impediment to the Defendant’s state of
contumacy.

For these reasons, this Court proceeded to deliver its judgement
by dismissing all the Defendant’s pleas to justify its
contumacy.

All judicial expenses were to be borne by the Defendant.

Originally Published by The Malta Independent (22 November
2022).

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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