The Perfect Enemy | COVID-19 Pandemic Not a Lawful Excuse for justifying Contumacy
December 9, 2022
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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.

This article was first published in The Malta Independent (22 November 2022).