Court vs arbitration

I have just read the news item that my friend and colleague Carmelo Mifsud Bonnici, MP, who is responsible for the running of our courts, is inclined to introduce further amendments to our code of organisation and civil procedure in the sense that all collisions which deal with amounts not in excess of Lm5,000 and all cargo claims are to be decided through arbitration.

I have no doubt that the intention of Dr Mifsud Bonnici is good but I firmly believe it does not meet with the approval of most of his brothers-in-law.

Firstly, I would like to ask a very simple question: Why is there going to be this innovation?

We have had a recent amendment to our code with the creation of the Small Claims Tribunals whose jurisdiction is that of all monetary claims not exceeding the sum of Lm1,500. I have discussed the issue with one of the chairmen and he informs me that, on average, each one of them has some 900 cases per year. Practically all of such cases are decided within the year in which they are introduced.

The jurisdiction of the Magistrates' Courts lies between Lm1,501 and Lm5,000. Here again the position seems to be very satisfactory because the magistrates are dealing with their case-load very expeditiously and judgment is pronounced within a very short period.

The Superior Courts deal with all matters in excess of Lm5,001, with family problems for which an apposite court is being created, and with all other matters which do not fall within the ambit of the Magistrates' Court.

The infrastructure in the Small Claims Tribunal and the Magistrates' Court already exists.

The Arbitration Centre is not equipped, from an infrastructure point of view, to handle such a heavy workload. To start with, the building which houses the centre only has four rooms which may be made available to the parties. Sittings would therefore have to be held in the private chambers of the arbitrators, which are not always in Valletta, where we lawyers work. The number of available arbitrators to be chosen in both spheres referred to by the permanent secretary are also limited.

Having said this I feel that what is of paramount importance, for us lawyers, is the time when the sittings to be held before the arbitrators are going to be held.

A system has been introduced and, by and large, all the judges agree that cases should be heard by appointment. Naturally, they expect, and rightly so, that the appointments given are to be respected. The sittings before the judges are held in the mornings and on rare occasions also in the afternoon.

The sittings before the chairmen of the Small Claims Tribunal are held from 12.30 p.m., sometimes, even though rarely, up till 3 p.m.

Sittings before the court-appointed referees or experts are normally held after 11 a.m., sometimes even in the evenings at the offices of the experts involved.

Presumably, the sittings to be held before the arbitrators would invariably have to be fixed by appointment - thereby avoiding unnecessary loss of time for all concerned. Hence, the only time available would be between 3 and 5 p.m.

Bearing in mind that a person has the right to be assisted by a lawyer of his choice and the fact that most lawyers are busy with their work, the lawyer must have enough time to prepare himself in the interests of his client.

Shouldn't a lawyer have time to prepare his writs/summons/applications/notes of submissions and whatever else is required of him, within the time-frame established by the courts? When is he going to find this time?

Shouldn't a lawyer have time to interview his clients to see whether the claim put forward by his client merits further consideration and legal proceedings?

Shouldn't a lawyer have enough time to deal with his correspondence?

Finally, is the lawyer entitled to have some free time to have a sandwich and a cup of tea, sometime during the day?

Once over recent years it has been proven that the system before the Small Claims Tribunal has worked very satisfactorily, why dismantle it and leave it to deal solely with debt collection?

If the arbitration system has not been so widely availed of, this is not because the system is bad or that the arbitrators are not capable persons, but simply because the Maltese mentality does not accept such a system. It is certainly not fair on the government of the day to try and force its ideas down the throats of the Maltese people.

Very often, when I have suggested to my clients to refer their matter to arbitration, I have been regaled with a suspicious response and I have only managed to convince those very few, who have actually agreed.

All in all I believe, and so do many of my colleagues, with whom I have discussed the issue, that arbitration should be voluntary and not mandatory.