In every civil action, the plaintiff must have a valid juridical interest in the action being instituted and must bring evidence of such. Juridical interest, besides being personal, direct and legitimate, must subsist from the moment the lawsuit is filed until judgement is delivered.

In civil proceedings the law allows a third party to join a lawsuit either upon a demand of one of the original parties to the suit or at the court’s discretion (ex officio). The third party’s entrance can take place at any stage of the proceedings, provided that this precedes the judgement, and any request to that effect may only be lodged before a Court of first instance.

The third party that joins the suit is referred to as a “Joinder” (more often known as the “Kjamat in Kawża”), reference to which is made in Article 961 of the Code of Organisation and Civil Procedure.

The Joinder, whether introduced to the suit following another party’s request or ex officio, may participate in the action as a defendant, and is therefore entitled to file written pleadings, raise pleas, and ultimately avail himself of the same rights and benefits granted to every defendant, despite not being an original party to the suit.

A judgement delivered by the Court of Appeal on 12 July 2023 weighed in heavily on the principles surrounding the legal notion of “Kjamat in Kawża”, in the names Dr Mark Attard Montalto et v. Dr Michelle Tabone as representative of the archbishop, administrator of ecclesiastical properties in Malta.

Following the court’s decision at first instance to uphold the defendant’s request to introduce a joinder in the action, the Court of Appeal was asked to decide whether the Court at first instance was legally correct.

The Court of Appeal contended that the principle of judicial interest applied here in much the same way as it would at law if one were to institute any new claim. The Court of Appeal also reiterated the importance of the already vastly developed concept of “Kjamat in Kawza”, which may come into play for a variety of reasons, including, to prevent conflicting judgements, to protect the original defendant’s interests in regard to third parties and the plaintiff’s own interest and peace of mind that the principles of justice are observed.

When the circumstances of a case merit the need for a joinder to participate in the proceedings, and the court acknowledges it, it is incumbent on the court to make an order to this effect, ex officio, without the need for a request by one of the parties  

Meanwhile, a person who successfully shows that he has an interest in any action ongoing between other parties may be admitted to the lawsuit as what is known as an “Intervenor”, at any stage in the proceedings.

This means that if an individual, not being a party to an existing suit, has a legitimate and direct interest in that suit, he may file an application demanding he be heard by the court since that particular judgement might also affect his position at law. Unlike a Joinder, an Intervenor may request admission to the suit from both a court of first instance and an appellate court.

Local  jurisprudence 

In a judgment delivered on July 5, 2023, the First Hall Civil Court declared that to qualify as an Intervenor, one must have direct and substantial juridical interest in a lawsuit that goes beyond having a simple interest in the outcome because of its repercussions on related future lawsuits.

In other words, a prospective Intervenor must be ready to show that he is vested with direct interest in the case at hand, and not its outcome because of how this may affect future cases.

The most significant difference between a Joinder and an Intervenor is that while an Intervenor can never be bound by the judgement in which he has been admitted as an Intervenor, a Joinder is subject to the outcome of the claim which may be allowed or disallowed in his regard, as if he were an original defendant.

Where this does not concern the issue of Joinders and Intervenors, the court is generally kind to errors made in written pleadings or applications, by virtue of Article 175 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta), which allows the substitution of any act or the amendment of any pleading as long as this substitution or amendment does not affect the substance of the action or the defence. In fact, the Court has for years been trying to abolish certain procedural formalities surrounding the correction of acts and pleadings that had previously resulted in dragging out cases for far too long unnecessarily. Unless the substance of the merits of the case are likely to be prejudiced, the preferred route taken by the Court is to salvage the acts and pleadings, not to reject an apposite request for correction or substitution, which rejection would have likely resulted in the acts or pleadings being declared null by the Court.

The Court of Appeal in the judgement quoted above, dated 13 July 2023, upheld the judgement delivered at first instance, allowing the Joinder to participate in the proceedings.

Dr Nicole Vassallo is junior associate at Azzopardi Borg and Associates, Advocates.