With the prevailing circumstances and the emergence of mandated remote-working measures, modernisation and the possibility of electronic filings in the local court procedural context is sorely needed.

Maltese procedural law dictates that all pleadings before any court regulated by the Code of Organisation and Civil Procedure (COCP) shall be printed, type-written or written in ink. The COCP also mandates that written pleadings and all applications, whether sworn or not, are to be signed by the advocate and legal procurator where applicable. This requirement taken at face value seems to inherently prohibit the possibility of electronic filing before our courts.

However, back in 2016 with a further amendment in 2018, the possibility of filing certain pleadings and letters electronically was introduced, specifically, the filing of contentious procedures before the Courts of Magistrates and the institution of, and defence against, proceedings before the Small Claims Tribunal. Sworn applications and applications that initiate a contentious procedure before the Commercial Section of the Civil Court are also permissible. However, they do not appear to have been implemented in the government’s electronic portal. In a similar vein, albeit somewhat less useful, judicial letters which do not require an oath may also be filed electronically in the First Hall of the Civil Court.

While being commendable, the problem with these solutions is they all require a physically on-premises functioning court registry which is no longer available in the prevailing circumstances by virtue of the Superintendent of Public Health’s order to close the Courts and the Court Registry. These tentative solutions similarly do not address the possibility of filing ad hoc applications, notes or any procedural instruments which may be necessary such as schedules of deposit, redemptions, counter-warrants, the lack of which is contributing to justice being needlessly delayed and possibly causing economical prejudice to those affected.

The main hurdle to overcome in some cases is purely of an electronic, infrastructural nature. Indeed, whereas entire industries have shifted to implement remote working capabilities, till now, the functions of justice including those of the Court Registry in Malta can emanate solely from an immutable address in Republic Street.

Various proposals have recently been made by the Chamber of Advocates, by virtue of the publication of a report which in itself is a step in the right direction – however, in relation to electronic filing, the same report begrudgingly admits that the setting up of a fully-fledged electronic filing system in the short-term is not an option. The defeatist reasoning in such a statement is unclear, particularly when some infrastructural groundwork has clearly been implemented behind the scenes, covering the admittedly limited possibilities outlined above.

Moreover, it is not guaranteed that the prevailing circumstances are wholly short-term in nature and, in any case, preparations should be made for the long-term. Arguably, implementations in this field should not merely be stopgap measures (which can be implemented using current arrangements) but more ambitious in scope, the current crisis could serve as a watershed moment for modernisation in our Courts’ filing procedures.

A major feature in procedural filings – that of assuring the genuine nature of filings to a sufficient degree recognised at law – can be tackled using electronic signatures which have long been a feature of Maltese law. In fact, since the transposition of the E-Commerce Directive (Directive 2000/31/EC) and later on by the introduction of the Electronic Identification and Trust Services (eIDAS) Regulation (910/2014 EC) as well as by virtue of the E-Commerce Act (Chapter 426 of the Laws of Malta).

The current crisis could serve as a watershed moment

At its core, an electronic signature, (defined in technologically neutral terms) is merely “data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign”.

This definition can be compared to the use of traditional handwritten signatures which purely derive their unique nature through a calligraphic (ideally original) expression of the signatory’s name or initials.

The eIDAS Regulation mandates that: “an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures”.

This does not mean electronic signatures are an insurmountable piece of evidence which cannot be attacked from a probative aspect (in this aspect, even hand. Not all electronic signatures are created equal – the law in fact recognises a variety of electronic signatures ranging from the Standard Electronic Signatures (corresponding to the basic definition of electronic signatures given above), Advanced Electronic Signatures (AES), which mandate stricter electronic measures to ensure the genuine nature of the signature in the form of four criteria i.e. (1. Being uniquely linked to the signatory; 2. Capable of identifying the signatory; 3. Created using data that can be used by the signatory under their sole control and 4. Linked to the data in such a way that a subsequent change in the data is detectable) as well as the gold standard, the so-called Qualified Electronic Signature (QES). The latter affords the strongest probative value which the eIDAS itself equates to handwritten signatures.

This is rendered possible by the stringent features required from a QES over-and-above the requirements fulfilled by an AES.  A QES is an AES with all its criteria and the addition of a qualified certificate (which serves to certify the electronic signature itself), issued by a qualified trust service provider.

This entire regime and process of qualified certificates, and qualified trust service providers, is also regulated and harmonised across the EU by virtue of the eIDAS regulation. As a whole, these electronic tools, based on non-repudiation principles and public key cryptography, are deemed good enough to be used in banking, financial services and other high-stakes industries which, from a technical aspect, makes them a good fit for legal proceedings and can afford legal certainty and a high degree of probative security.

The E-Commerce act, unfortunately, excludes electronic signatures from applicability in an extensive list of activities including the activities of information society services when these involve representation of a client and defence of his interests before a court as well as the rules, practices or procedures of a court or tribunal.

However, the minister is empowered: “where he is of the opinion that technology has advanced to such an extent and access to it is so widely available or adequate procedures have developed so as to warrant such action, or the public interest so requires”; to prescribe more areas within which electronics signatures should be deemed valid. Requirements, which can all be met when considering the wide prevalence of the technologies involved, particularly when considering the fact that our current situation may be prolonged or indeed likely to re-emerge in the future.

Demystifying such interventions, together with the gradual rolling out of secure remote-conferencing facilities, aside from ensuring justice is not delayed during such abnormal circumstances, would also aid in ensuring that justice is more efficient during normal circumstances;  particularly so in scenarios where some court sittings do not involve examinations or cross-examinations of witnesses and can be replaced with expedited electronic filingor submissions.

Deo Falzon, LL.M (Lond.) LL.D., associate at Fenech & Fenech Advocates