At a time while many were baking away their lockdown boredom (and informing the whole of Facebook about it), on April 14, the Civil Court, First Hall quietly delivered a succinct decision that strayed away from years of long-established legal interpretations of the law of precautionary warrants.
This was done in the decision given by Mr Justice Robert G. Mangion in his decree in the names of ‘John Camilleri et v Luke Camenzuli’ (250/2020).
Whoever is hit with a precautionary warrant filed and decreed against him may make an application to the court requesting that such precautionary act be revoked, either totally or partially. The law does not allow one to ask for the revocation of a warrant just for any reason. In article 836 (1) of the Code of Organisation and Civil Procedure (chapter 12 of the Laws of Malta), it lists the ground on the basis of which one can make such a request.
One of the grounds is that found in sub-article (f), which states that a precautionary warrant may be removed if “it is shown that in the circumstances it would be unreasonable to maintain in force the precautionary act in whole or in part, or that the precautionary act in whole or in part is no longer necessary or justifiable”.
The operative terms here are ‘maintain’ (in the Maltese version of the law, ‘jinżamm’) and ‘no longer necessary’ (‘mhuwiex aktar meħtieġ’) – two phrases that have inspired a long line of judgments stating that for one to successfully challenge a precautionary warrant, one must prove that there had been a change of circumstances that no longer justify the keeping of the precautionary warrant.
This idea based itself on the proper wording of the law, that is that the law implies the court’s job is not to state whether or not the warrant was initially justified but whether a warrant presumably justified could continue to be considered as justified in view of a change in circumstances.
The starting point of any accepted warrant is that it was justified and it is not enough for one to claim that it had been wrong from the very start. Through this interpretation of article 836 (1) (f), one’s hope is to prove that a warrant presumably justified is no longer so.
It is hard to trace when it was that our courts first took this approach and who really was the originator of this interpretation. What is certain is that this argument has been copied and repeated for long years, until this interpretation became the one ‘legal truth’.
Certainly, the wording of the law is poorly-thought-out, and admittedly, it creates unnecessary pain for genuine people who are hit by utterly unjust precautionary warrants but who cannot do anything about it because “the circumstance would not have changed”.
Here, it is important to highlight the fact that usually, when many requests for the issuance of warrants are acceded to (save for instance, the prohibitory injunction), the parties aren’t heard, and issuing a warrant is many a time a case of a court rubber-stamping a request without much investigation and/or a right of reply being given to the other party.
This is one of those awkward instances in the law
The law only provides that a request for the issuance of precautionary warrant is to be confirmed on oath by the claimant but investigation further than that is rare. We have seen some cases where the court would request that the claimant provides more information to support his request.
But this system has not really caught on (perhaps because every year, thousands of precautionary warrants are filed) and, most of the times, requests like these are almost accepted automatically.
Inevitably, through this system, among a number of fully-justified warrants, there will be a few which are unfair, frivolous and totally unjustified. And that person hit by this second kind of warrant would many times not be able to do anything about it, because as frivolous as the warrant would be, after it would have been filed and accepted, there would have been “no change of circumstances” that could allow him to ask for the removal of the warrant, even if that warrant would have been unjustified at the first place!
This is one of those awkward instances in the law where the rights of a person are severed through poor drafting and perhaps too much of a stringent interpretation (and reliance on previous judgments).
As it is, and as it was being interpreted, one may successfully remove a precautionary warrant that was initially correct, but no longer justified, but one cannot obtain the removal of a warrant that was wrong and frivolous from the very beginning and continues to be so.
This interpretation may even carry constitutional implications, for one is not given a reasonable opportunity to successfully access justice to defend against an unjustified precautionary warrant. One cannot defend against an unjustified request for the issuance of a precautionary warrant when it is originally filed and also cannot ask for its removal, unless circumstances would have changed, even if that warrant would have been flagrantly unjustified in the first place.
In the decision of ‘John Camilleri et v Luke Camenzuli (250/2020RGM)’, the court took note of all the oddities in this law and its interpretation.
It stated that article 836 (1) (f) should not be interpreted as being applicable only when circumstances change. There may be circumstances where a precautionary warrant should not be ‘maintained’, because it was wrong from day one.
When issuing a precautionary warrant, a court usually does not investigate the merits and rests on the oath of claimant in order to accept the request. Therefore, it follows that for a precautionary warrant to be removed, there need not be any change of circumstances, but it is enough that a warrant was unjustified from the very beginning.
The court further stated that the word ‘maintained’ in the law does not necessarily mean that there has to be a change in the circumstances. Had it been the case, the wording of the law would have been different and perhaps clearer.
As a result, and after looking at the facts of the case, the court ordered that the precautionary warrant filed against the applicant is to be removed.
It remains to be seen whether or not this new (and perhaps more flexible) interpretation of article 836 (1) (f) will catch on. Beyond any legal debate, it is certainly a fairer approach and one which discourages the abusive exploitation of precautionary warrants.
Carlos Bugeja is partner at Azzopardi, Borg & Abela Advocates.