Government to propose changes

Justice Minister Tonio Borg said yesterday that the government would consider any changes to the new system it is proposing for the recovery of uncontested debts of up to Lm5,000 as long as the principle remained that such debts could be recovered through claims made in an official letter served on the debtor.

Winding up the debate on the bill to amend the Code of Organisation and Civil Procedure, Dr Borg said criticism of the bill had been divided into two. Some claimed that human rights were being violated because recovery of a debt up to Lm5,000 could be demanded through a judicial letter which, if uncontested within 30 days, would assume force of court judgement, and traffic collisions of under Lm5,000 would be considered before the Arbitration Centre.

Others had criticised the bill half-heartedly as they seemed to agree that, with fine tuning, it could be a good bill.

With regard to the latter, he would declare that the government would accept any changes to the bill as long as official letters for the recovery of uncontested debts of up to Lm5,000 would become executive titles.

For example, the government agreed that the bill could be amended to make it easier for the debtor to contest a claim, such as by being able to file a note instead of another official letter. It agreed that the creditor should confirm his claim on oath, that there would be a formal formula for the making of a claim, and that the notification process could be improved to prevent abuse. For example, the official letter would be notified by post to the debtor "in Malta" and it would not be possible to appoint curators or affix official letters to doors.

Some arguments, Dr Borg said, had not made sense. Much ado had been made that mistakes could be made in the notification process. But that was a possibility for all court cases, and this would not be any different. And in the procedure established by this bill, one would have 30 days, not 20 days, for a claim to be contested.

The aim of this bill, Dr Borg said, was to remove from the backlog of court cases those cases which were uncontested. This system was also better for debtors as it saved them on court costs when claims were uncontested. Indeed, costs for uncontested claims under this procedure should not be the same as for a full court case.

Dr Borg said he wanted to give notice that this bill was only the beginning and his ministry over the summer would be working on a White Paper on further reforms in the civil and criminal sectors aimed at reducing bureacracy and antiquated practices which gave more importance to form than substance.

Turning to the second part of the bill, Dr Borg said traffic cases which had a value of under Lm5,000 and did not involve injury would be considered in the Arbitration Centre.

It was a Labour government which had made cases under the Condominium Act subject to mandatory arbitration. Yet some members of the opposition, including Anglu Farrugia, chairman of the committee which had proposed that law, had now said that this section of the bill was madness.

And it was not true that there could be no appeal from arbitration decisions. Appeals were possible on points of law.

Earlier in the sitting, Foreign Minister Michael Frendo said it would be a mistake not to link the way justice was done in Malta to how the country could attract more investment and have a more active economy.

What the bill was proposing facilitated the way things were done.

Through the proposal for the recovery of debts by means of an official letter, the bill had come up with a simple procedure that made resolving such issues, particularly when the debt in question was not contested, easier. The law was offering a particular solution that was achievable, and it was positive in that it would hasten matters while ensuring justice.

Arbitration was also being proposed for cases that were related to vehicles. Malta had a long history of arbitration, which was an alternative system of taking decisions in the administration of justice.

The proposal being made was a natural development to what there had been before.

There had existed an informal practice between lawyers and individuals whereby methods of arbitration were used, with experts in the subject matter being appointed to expedite a decision. There were also those who resisted the idea of arbitration in preference for the court system.

The arbitration centre had an important future and presented opportunities for Malta, and it should be strengthened in several ways. It should, for example, continue to be given an international image. This was something that could be built up over the years.

The bill being debated would strengthen the practice of arbitration, but, in terms of this bill, arbitration was only being made mandatory when the value at stake was less than Lm5,000.

Ms Marie Louise Coleiro (MLP) said the government, through its proposals on the new system for the recovery of a debt, was undermining one of the pillars of natural justice because there were instances where one could not defend himself. A case in point was when the official letter for the recovery of debt was not properly served and the debtor could not therefore resist the claim on time.

She questioned what consultation the government had made with the relevant bodies prior to this bill's publication.

Nobody was happy with the case-load in court, but channelling cases to mandatory arbitration was not the solution. This was not the way in which one encouraged people to use arbitration. Arbitration should be voluntary.

At present, 90 per cent of traffic cases were heard before the Inferior Courts. Making arbitration mandatory would establish another 'tribunal' and this would take away the voluntary nature on which arbitration was based.

There were other legal matters, which needed to be addressed. Legal aid, for example, needed to be reformed in order to guarantee equal access to justice for all. The Opposition had proposed that the client would be able to choose his lawyer rather than being given one from the list. This lawyer would then be paid according to the normal legal fees. This proposal had never materialised.

The Family Court was another recent reform, which had not given proper access to justice. Mediation had been imposed on the people rather than this being voluntary.

Another reform had limited the amount of compensation for damages which a court can award in case of certain claims. This hindered the independence of the judiciary.

This bill gave the right to a creditor to recuperate sums of up to Lm5,000 through a simple judicial letter which, once served and uncontested for 30 days would have the strength of a court judgment. This could be dangerous for it was possible that one was unaware of this letter, such as in cases where the letter arrived in a household where there was marital conflict. Or it could very well be the case that a person with a just cause did not come in possession of this judicial letter. Therefore, was this simple letter enough to guarantee a fair hearing?

Labour MP Joe Sammut said that contrary to what some were saying, if this bill became law, income for lawyers would increase because what currently went uncontested would start to be contested.

The issue was whether a case was contested or not. The difficulty arose when debtors lacked funds. It would have been more practical, instead of overturning procedure, for judges or magistrates to fine those they believed would have initiated unnecessary procedures.

As it were, instead of reducing expenses and shortening procedures, one was, through the amendment, increasing expenses and lengthening procedures.

The time had come for the magistrate or judge to be responsible for a case from beginning to end.

Dr Sammut said that delays in court could be caused because of many factors. Some members of the judiciary were inventing procedure, for example.

He said that the increase in tariffs had not reduced work at the courts; it had only resulted in preventing the common people from seeking their rights because they could not afford to.

Turning to arbitration, Dr Sammut said there was a lack of confidence by the people in arbitration. The people trusted the courts. Arbitration was voluntury but the number of people who opted for it were only a few.

Tourism Minister Francis Zammit Dimech also spoke on the various provisions of the bill and said justice delayed was justice denied. The purpose of this bill was to reduce the caseload before the courts by introducing a simple new system for the recovery of uncontested debts of up to Lm5,000.

Making it easier to recover a debt would generate a better flow of cash in the economy.

Turning to the provisions for traffic cases not involving injury and not exceeding Lm5,000 to be heard before the Arbitration Centre, Dr Zammit Dimech noted that while Labour MPs were now against mandatory arbitration, they had introduced such mandatory arbitration in cases under the Condominium Act. There were issues under this Act which, if quantified, involved amounts of more than Lm5,000. What was wrong then, in extending this procedure to traffic cases where there was no personal injury?

Nationalist MP Michael Asciak said people were far from satisfied with the service given by the courts.

He mentioned a particular case where the accused accepted the blame but judgment still took five years to be given and payment of damages took even longer. This showed that there was a lot of ground for improvement and if this bill was aimed at hastening procedures, he agreed with it completely.

Dr Asciak said he could not understand why the courts had to take holidays in summer when there was such a backlog. Imagine hospitals closing for a month in August, he said.

The bill was given a second reading after a division, the opposition voting against.

Traffic cases are to be heard before the arbitration centre where they do not exceed Lm5,000 and do not involve injury.