by Jurgen Micallef - Paralegal
Tens of court cases are instituted every single day. Some cases concern complex legal and factual issues, while others less so. Many times, a defendant in a case fails to file a sworn reply within the time-period afforded thereto by law (20 days), or else fails entirely to turn up in court. Expectedly, the courts do not appreciate this.
Not showing up to court or failing to present a statement of defence is not a recent trend. In fact, the consequences which follow may somewhat be traced back to the times of the Roman Empire — the era that gave birth to the notion of contumacia, etymologically meaning: the failure to obey the authorities out of mere stubbornness. Originally, the Roman courts used to impose a number of unpleasant practices in forcing a defendant to appear before the court, such as allowing the plaintiff (i.e. the individual instituting the case) to physically drag the defendant to court or order the seizure of the defendant’s assets. When someone was called to appear before a judicial authority, he was expected to turn up.
The question has always been how to interpret the defendant's non-appearance in court: should it be considered as an admission to all the claims brought against him or her, or should the case at hand be considered as if the defendant is contesting the claims brought forth? In recent times, the Maltese courts have opted for the latter interpretation, and in the superior courts, the-non appearance of a defendant is still considered as if the defendant is contesting the claims. Of course, if the defendant appears at a later stage, unless he justifies his contumacia, he is practically unable to do anything to help his case, and many times (although not every time, the absent defendant ends up losing). In other countries such as in such as in the United Kingdom, the defendant’s non-appearance or lack of defence is interpreted as an admission to the claims.
Whilst nowadays the court will not actually allow the plaintiff to physically drag you to court or seize all your assets for merely not showing up, it will impose other limitations to the absent defendant, which limitations are however carefully selected to stay within the parameters of the numerous human rights in force, particularly within the parameters of the famed right to a fair trial. Authors on the subject have noted that the measures which are imposed in modern times seek to eliminate any obstacles to the procedure, rather than punishing the non-appearing defendant.
In fact, the measures imposed are now more realistic in nature. In substance, the current state of default (contumacia) prohibits the defendant from actively participating in the proceedings brought against him or her. This means that a defendant who does not produce a formal reply or does not appear in court, is then unable to produce evidence or cross-examine evidence produced by the plaintiff. The defendant will also be unable to file any pleas or even contest the evidence brought forth by the other side. Nevertheless, the defendant shall be simply afforded an ‘inactive’ role in proceedings, meaning that he/she shall retain the right to be present during the hearings, to receive copies of any documents submitted by the other party or any information communicated by the court, to file an appeal or to even ask for a retrial.
The law does allow a little leeway for the absent defendant. If he convinces the court that he would failed to present a statement of defence because of some legitimate reason beyond his or her control, then the court might allow him to rectify his position. The law states:
“If the defendant makes default in filing the sworn reply mentioned in this article, the court shall give judgment as if the defendant failed to appear to the summons, unless he shows to the satisfaction of the court a reasonable excuse for his default in filing the sworn reply within the prescribed time. The court shall, however, before giving judgement allow the defendant a short time which may not be extended within which to make submissions in writing to defend himself against the claims of the plaintiff. Such submissions shall be served on the plaintiff who shall be given a short time within which to reply”.
What does this mean?
It simply means that the court must allow the defendant enough time to explain to the court his or her reason for his lack of defence or non-appearance. If the court considers such reason as being a valid excuse, then the defendant will be allowed to re-join the proceedings, and take ‘active role’ of participation in proceedings. Not all reasons are considered as a valid excuse. In fact, the Maltese courts have established criteria which must be fulfilled in order for an excuse to be deemed as a valid one:
(1) The position of the defendant cannot be voluntary/intentional;
(2) It cannot be justified if the defendant was negligent;
(3) There must be a legitimate impediment;
(4) Such legitimate impediment must be beyond the defendant’s control;
(5) A ‘mistake’ does not amount to a legitimate impediment;
(6) There must be physical (not moral) non-appearance.
So, if you simply forgot to call your lawyer when notified with a court summons or you fail to turn up to court simply because you spilt coffee all over yourself, don’t expect a judge to feel sorry for you!
(For a more detailed analysis, refer to Judge Grazio Mercieca's series of judgements, particularly HSBC Bank Malta plc vs. Darren Dimech et (1208/2019), SL Ship Management Company Limited vs. Petroplus Limited (836/2019), Reactilab Limited vs. Debattista Caroline (Hush Hair and Beauty Salon) (1038/2018) and No Deposit Cars Malta Limited vs. Nemanja Stojkovic (820/2018)
Jurgen Micallef Paralegal at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us at firstname.lastname@example.org.