Appeals are not mere golf balls to be thrown around without much aim or logic, as often done by the first-time golfer.

The Court of Appeal is already tremendously busy as it is. The last thing it needs is a barrage of appeals with no real scope and logic. For this reason, the law attaches penalties to frivolous appeals and provides for procedural measures against those who eventually intend to aimlessly toss a proverbial golf ball and then try to avoid paying the green fee.

This is done through article 249 of the Code of Civil Procedure, chapter 12 of the Laws of Malta.

This article at law states that (subject to a few exceptions) in the case of an appeal from judgments or decrees given in a cause initiated by sworn application, security for costs is to be produced and deposited in court within 12 months from the date of the notification of the amount to be deposited, or if the appeal is to be heard earlier than 12 months from such notification, by two days before the date set for the hearing of such appeal.

The security for costs is calculated by the Registrar of Courts and is usually based on the official tariffs provided in the law. If the amount so calculated is not paid in time, then the Court of Appeal shall declare the appeal to have been abandoned and the appeal is to be immediately disposed of and struck off the court’s list. And just like that, the original judgment would stand.

The golf club has to be picked up in time or the game is over.

The law does provide a way out for those genuine appellants who are unable to pay the security for costs, for in some cases, this may amount to thousands of euros. An appellant may request that he delivers a guarantee for the costs on his own recognisance (probabilis causa litigandi), if he shows a prima facie probable cause of action in his appeal and if he swears on oath (and convinces the court) that he was unable to raise such security as is required by law. This is not a simple plea to make, for one must keep in mind that often, notification for the payment of the security for costs is sent years after the appeal is filed. An appellant would usually have plenty of time to plan ahead and put aside the necessary funds.

In the case of ‘Alfred Baldacchino et v L-Avukat Ġenerali et’, decided finally by the Constitutional Court on March 27, the plaintiffs lamented that the method of computation of the security for costs by the Registrar of Courts breached their right of fair hearing guaranteed by article 6 of the European Convention of Human Rights and article 39 of the Constitution of Malta.

The plaintiffs had no guarantee that they were right in their arguments

The issue was this: in another case that preceded this one, the plaintiffs had been sued by the Director of Lands for damages and lost. The court had ordered them to pay the sum of €438,090, a loss they vehemently contested, so much that they had appealed that judgment. The security for costs was calculated as a percentage on this amount, adding up to a staggering €17,367.

The plaintiffs pleaded to the court that they did not have funds to make the payment and requested that they pledge their admittance into the appeal through their oath. The court had considered the matter but found that the plaintiffs did have the means to pay this sum. As a result, it rejected the request and declared that the appeal had been legally abandoned.

But the plaintiffs would not have it.

They filed a constitutional case, claiming that they had been denied effective access to justice when the Registrar of Courts decided that the amount to be deposited as security for costs due was to be calculated on the basis of the amount liquidated by the court in the judgment against them (that is, €438,090). They were not arguing against the mathematics used in the computation but rather against the fact that the Registrar took the sum quantified by the court in the appealed judgment as the starting point.

The logic was unmistakeable: if I am contesting a judgment, I cannot be denied appeal for not paying a security calculated on the basis of that very same judgment I am appealing from. To the plaintiffs, the Registrar of Courts was wrong in deeming the amount liquidated by the first court as being a final and reliable starting point for his computation. As a result, the deposit requested was way too high, putting them into a position whereby they were unable to pay the security for costs and thus unable to advance their appeal.

The Civil Court, First Hall (Constitutional Jurisdiction) found no human rights breach. The plaintiffs appealed.

In its judgment, the Constitutional Court stated that at the moment when the ‘taxxa tal-qorti’ was published, there existed a determined amount established by a court of law (the €438,090), upon which one could calculate the security deposit according to the official tariffs in the law. It was true that the amount was being contested but it was also true that the plaintiffs had no guarantee that they were right in their arguments.

Furthermore, once the plaintiffs were appealing from the court’s decision to order them to pay the sum of €438,090, it was logical for the Registrar of Courts to calculate the security deposit on that amount.

The court added that the security for costs is a justifiable measure to ensure that all costs are covered should an appeal be rejected. Indeed, the amount requested as deposit was less than four per cent of what the case was about. The notice for payment of the security for costs was delivered to the plaintiffs four years after they had filed the appeal and so they had ample time to prepare themselves.

For these reasons, there was no breach of the Constitution or the European Convention of Human Rights, and as a result, the Constitutional Court rejected the appeal.

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