The right of appeal is not automatic. In some cases, someone who feels aggrieved by a decision of a court first has to request permission to appeal from the court that would have made that very same decision. If the court says ‘no’, then one cannot immediately appeal.

As strange as it sounds, this is the law, and there are valid reasons for its existence.

Courts give three types of decisions: decrees, judgments and those which, in rare cases, our courts describe as being neither decrees nor judgments. For one to decide how to challenge a decision, one must first find out the nature of the decision one is dealing with.

This is not always a simple task.

Decrees are usually defined as orders on particular issues that may arise during a lawsuit, while a judgment is a pronouncement on the whole claim. This is a generic distinction and by no means an unfailing one, as most lawyers will tell.

This may look awfully complicated, and quite truly, it is.

Article 229 (1) of the Code of Organisation and Civil Procedure (COCP) starts out by listing the decrees that can only be appealed from together with the final definitive judgment.

For instance, a decree allowing or disallowing the expunging of a document from the records of the case cannot be appealed from mid-case and halt the case until the appeal on that point is decided. Any grievance on the list decrees must wait, and then addressed at the end, together with an appeal from the final judgment.

That way, cases are not unnecessarily delayed as lawyers argue the nitty-gritty of every single procedural aspect that arises as the case proceeds.

However, there are a number of decrees which may indeed be appealed from before the final judgment is delivered. These are ones that are considered vital and that necessitate a ‘final’ decision prior to the delivery of the final judgment.

The law, in article 229 (2) of the COCP provides a limited list of these kind of appealable decrees, such as a decree refusing the joinder of a third party in a lawsuit.

Other decrees not included in the lists under article 229 (1) and article 229 (3) may be appealed from before the definitive judgment only if and after the court gives the aggrieved party permission to appeal, upon a request to be filed within 10 days from the date on which the decree is read out in open court. The court may only grant such leave of appeal if it deems it expedient and fair that the matter be brought before the Court of Appeal before the definitive judgment.

These are – simply put – the rules of appeals from decrees.

When it comes to judgments, there is a similar procedure, provided for in article 231 of the COCP.

A case may be decided by more than one judgment. There may be preliminary issues which need to be decided prior to hearing the rest of the case, such as when there is a plea against the jurisdiction of the court hearing the case. The court will first deliver a judgment on that plea, and if it finds that it does have jurisdiction, it will move to decide the merits of the case by means of a second judgment.

The right of appeal is not automatic

It is generally stated that where several issues in an action have to be determined by separate judgments, appeals may be made only together with the final judgment, unless the aggrieved party manages to obtain leave from the court to file an appeal on a first judgment, mid-case, and prior to the delivery of the final judgment.

The idea is that parties are not to be allowed to exploit the nuances of court procedure and seek an appeal from every single decision in order to delay the conclusion of the case. If an appeal could be filed from every single decision of the court, cases would just never end.

These principles were the matter in the judgment delivered by the Court of Appeal on March 11, in the names of ‘Brian Galea et v Adam Cilia’ (165/2018/1LM).

The applicants had filed a lawsuit against the respondents before the Rent Regulation Board. The respondents failed to reply in time but eventually asked the board to give them some more time and allow them to nonetheless file their reply. The board acceded to the request and by means of a decision dated May 8, 2019, granted the respondents an additional 20 days to file their reply to the lawsuit against them.

The applicants appealed from this decision.

The respondents, now the appealed, asked the Court of Appeal to reject the appeal for various reasons, including because in their view, prior to appealing, the appellants had to request leave of the court.

The first question that needed to be asked was: was the decision of the board of  May 8, 2019, a decree or a judgment?

The court quoted past judgments which stated that decrees do not generally ‘close’ the matter before the courts.

If the decision merely provides for a particular episode of a procedural aspect within the context of the matter at hand, that it should be considered as being a decree. If it decides the matter at hand or releases a respondent from the case (quando terminat negotium de quo agitur), it is to be considered as a judgment.

The court stated that the decision in question did not settle the whole of the lawsuit nor did it release the respondents from the case. It was merely a procedural decision which sought to regulate the way forward. It was not a judgment and, therefore, article 231 of the COCP, which refers to judgments, was not applicable.

Having established that the decision was indeed a decree, and not a judgment, it moved to analyse whether it was one of those listed under article 229 (1) (those that can only be appealed from together with the final judgment) or under article 229 (2) (those that can be appealed from immediately, without needing leave of the court).

Indeed, it was not.

As a result, one had to fall on the provisions of article 229 (3) of the COCP, that is those decrees which by exclusion, may only be filed upon obtaining permission from the court. It was hence clear that the appellants had to seek leave of the Rent Regulation Board prior to appealing.

The appellants had not done this and, therefore, the appeal was deemed null.

As a result, the case was returned to the Rent Regulation Board for it continue.

Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.