A judge has severely criticised the government for failing to provide the resources necessary for the judiciary to function effectively and deliver justice within a reasonable time.

Mr Justice Francesco Depasquale was delivering judgment over what he described as the “shameful” delay in a case instituted by a Maltese firm owed €100,000 by a bankrupt Italian catering company.

Government ‘very reluctant and conservative’ with its investment in judiciary- Judge Francesco Depasquale

The court found that the Maltese company suffered a breach of rights when the local courts took five years to appoint the debtor’s appeal for hearing.

The delay, which caused the local firm to miss out on bankruptcy proceedings abroad, was not to be attributed solely to the Maltese courts system, the court observed.

But it remarked that the government continued to be “very reluctant and conservative” with its investment in the judiciary.

Courts' caseload not mirrored by investment

Although, over the last few decades, the courts’ caseload has increased significantly in number and complexity, that increase was never reflected in an adequate investment in the courts.

While citizens were entitled to expect service within a reasonable time, the courts were equally entitled to expect the government to provide the tools and resources necessary to render such a service.

Failure by the executive to provide adequate resources meant that the judiciary could not operate in an effective and efficient manner and live up to the citizens’ legitimate expectations.

Even today, the number of sitting judges and magistrates remained much lower than that in any other European state and staff numbers were constantly dropping because of the meagre salaries offered to those working in court, said Mr Justice Depasquale.

His comments were made against the background of a separate civil lawsuit which, though originally filed by the Maltese creditor in July 2015, only managed to reach appeal stage in October 2020.

Appeal took five years to get on the case list

Francis E. Sullivan and Co Ltd, engaged as supplier of foodstuffs to a number of vessels operated by an Italian-registered company, International Catering SRL, had sued the caterer for unpaid invoices amounting to €96,848.29.

That case was heard and decided from start to finish by the First Hall, Civil Court within three months, with judgment delivered in favour of the creditor in October 2015. The debtor filed an appeal.

However, the appeal languished in court for five years before it was finally put on the case list before the Court of Appeal and scheduled for hearing on October 13, 2020.

On the scheduled date, the Italian appellant in Genoa had not yet been served notice of hearing and neither had the security money to cover the costs of the appeal been deposited in the court registry. The case was put off to December, 2020.

But the situation remained unchanged and the court put off the case sine die (indefinitely). It was subsequently reappointed for hearing on October 5, 2021.

That day, the debtor’s lawyer did turn up but the security money had not been paid and, therefore, the appeal was once again put off indefinitely.

Meanwhile, the Maltese company missed the opportunity to get its name on the creditors’ list when its Italian debtor filed for bankruptcy abroad.

In 2016, Francis E. Sullivan and Co Ltd received notice from an Italian court to participate in those proceedings but it could not enforce its claims since it lacked a valid executive title.

The judgment in its favour would have served that purpose had it been final rather than awaiting appeal.

Faced with this scenario, the creditor filed a breach of rights claim against the state, arguing that the delay in appointing the appeal had denied it justice within a reasonable time.

The First Hall, Civil Court in its constitutional jurisdiction not only upheld that claim but also made some pertinent observations. It was “truly shameful” that the Maltese company had to wait six years for its claims to become enforceable at law, Mr Justice Depasquale said.

Although the courts were the place where justice and the independence of the judiciary prevailed, they were “severely conditioned and hampered” by the lack of investment for which government “was solely responsible”.

Judge Francesco Depasquale heads the European Commission for the Efficiency of Justice.

'Equally shameful for lawyers to take advantage of shortcomings'

It was equally shameful for certain people, “particularly lawyers” who took advantage of such shortcomings caused by the government, to unduly play for time in favour of their clients.

Such “blatant and barefaced abuse” was condemnable, the judge said, adding that the court would have held both the foreign debtor and its lawyer responsible for the delay caused after the appeal was finally appointed for hearing.

Such abuse was “intentional”, went on the judge.

The judge also observed that the creditor could have sought other remedies to get the money, such as a provisional execution of the judgment of first instance.

Since the Maltese company had only addressed its claims regarding the delay towards the courts and the judiciary, the court could not lay any responsibility on the debtor company and its lawyer.

This fact was to be taken into consideration when meting out compensation because it was not “fair and correct” for the state to shoulder all the responsibility for the consequences.

While declaring that the applicant’s right to a fair hearing had been breached through such delay, the court awarded damages to the tune of €4500, which were payable by the state advocate as sole respondent.

Lawyers Cedric Mifsud and Ian Barbara assisted the applicant.