A procedural notion which often goes unnoticed is the cancellation of a case following the parties’ failure to appear at trial.

In any litigious cause, the two sides with a vested interest, i.e., plaintiff(s) who instituted the cause and defendant(s) against whom the cause was instituted, are expected to participate actively in the proceedings, which participation involves, at the very least, their presence during the trial.

Article 199 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) caters for those instances in which either both plaintiff and defendant, or the plaintiff, fail to make an appearance during a trial before the Superior or Inferior Courts.

A judgment in which this procedural instrument was invoked due to the failure of appearance of both plaintiff and defendant was that in the names of Duncan Mizzi v. Keven Agbigbi, delivered on August 30, 2023 by the Rent Regulation Board. The parties’ non-appearance despite the case being called three times, led the board to order the cancellation of the cause from the list, at the plaintiff’s sole expense.

When a cause is called three times and the defendant or his advocate appears but not the plaintiff or the plaintiff’s advocate, the defendant has the right to demand that the plaintiff be non-suited with costs, effectively discontinuing the proceedings.

Restoration when a case is cancelled from the list

This is not to say that the plaintiff does not have a remedy in the event of cancellation of the cause following failure to appear. An application for restoration of the cause to the list needs to be filed within three months from the date of cancellation. Such a demand will only be met once, so the plaintiff and/or his legal counsel must ensure their presence at subsequent hearings of the trial.

Having said that, the principle of cancellation of causes may not be invoked when a cause is awaiting the outcome of another cause.

Despite the wording of Article 199 suggesting that the power to cancel a cause from the list is one which vests solely in the Superior and Inferior Courts, and not in boards, the board ascertained in its judgment of Mizzi v. Agbigbi, that the Reletting of Urban Property (Regulation) Ordinance grants the Rent Regulation Board the authority to exercise the powers vested in the Civil Court by Chapter 12 of the Laws of Malta (of which the cancellation of causes due to default in appearance forms part via Article 199).

In the judgment of Mizzi v. Agbigbi, after the cancellation of the cause from the list due to the parties’ failure to make an appearance, the plaintiff chose not to avail of his remedy granted by Article 199(3) of Chapter 12 to restore the cause to the list, for this to heard and determined upon the same acts. As a result, the Rent Regulation Board reaffirmed its decree whereby it had cancelled the cause at plaintiff’s expense, and lastly declared that it will not be taking further cognizance of the proceedings.

This means that in view of plaintiff’s inaction to request the restoration of the cause within the three month window allowed by Article 199(3), plaintiff may not institute proceedings against the same defendant and on the same merits on which the cancelled cause was based.

The judgment is still pending appeal before the Court of Appeal (Inferior Jurisdiction).

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