The legal tools at the disposal of any person are not to be used frivolously. Indeed, whenever any legal act is filed, be it a lawsuit or a request for a warrant (mandat), there needs to be a legitimate claim raised by the legitimate person against the legitimate person/s.

The law even lays down penalties, in Article 836(8) of the Code of Organisation and Civil Procedure, against anyone submitting the warrant in situations such as when the warrant is not followed by a lawsuit in the prescribed timeframe; when there are no doubts as to the liquidity of an alleged debtor and when a warrant is issued with malice or is frivolous or vexatious.

One can also claim, under Article 836(9), any such damages suffered because of the issuance of the warrant, provided that one of the circumstances contemplated in Article 836(8) exists. Indeed, penalties and damages are typically claimed in the context of an application for revocation under Article 836(1), namely because the circumstances in which such damages can be awarded are limited.

A fresh precautionary warrant

Ironically, there may be instances where a fresh precautionary warrant is used as a counter-attack to the other party’s prior filing of the alleged frivolous warrant. In such cases the original ‘defendant’ would be the ‘claimant’ with respect to the new warrant.

This is what happened in a decree delivered by the Civil Court First Hall on February 9, 2023 in the names of ‘Paul Falzon et vs Paula sive Pauline Debono’.

The proceedings concerned the issuance of a warrant of prohibitory injunction wherein the claimants (previously defendants in other warrants) asked the court to prohibit the defendants from selling or donating a long list of immovable properties owned by the defendant. The amount claimed by the claimants was of €1,200,000.00. The reason given for requesting the warrant of prohibitory injunction was that the defendant (then claimant) had obtained in her favour the issuance of a number of garnishee orders (mandati ta’ sekwestru) against the claimants (then defendants).

Such garnishee orders, when added up, amounted to €289,000. However, for some reason, the present amount cautioned was that of €1,200,000.00.

The claimants alleged that due to the issuance of the original garnishee orders, they had suffered damages. They argued that the warrants had been filed frivolously, abusively, vexatiously and targeted towards causing them damages.

Therefore, the Civil Court First Hall was asked to examine the fresh warrant in light of the requisites at law.

The court explained that for a claim for the issuance of a cautionary warrant to be successful, the claimant must show that he or she has a prima facie right that must be protected and that if the warrant is not issued, he or she would suffer irremediable prejudice.

Furthermore, it held that the absence of one of these elements was fatal for whoever was making the claim.

The court agreed with the defendant that the claimants had not explained how they arrived at the amount claimed in such a way as to convince the court that on a prima facie level, there was a claim for such an amount.

The court further remarked that the amount had not been liquidated yet. Furthermore, the claimants had resorted to a fresh warrant without exhausting their remedies at law with respect to applications that can be filed in the acts of the previous warrants.

The court thus concluded that the claimants had not satisfactorily shown that they have a prima facie right. The court explained that because of this it did not need to delve into the issue of irremediable prejudice. Thus, it rejected the claim of the claimants for the issuance of the warrant of prohibitory injunction.

Such a decree cannot be appealed.

Dr Celine Cuschieri Debono is an associate at Azzopardi, Borg and Associates Advocates.