The importance of taking immediate action on receipt of a legal or court document can never be over-emphasised. It has been reiterated in countless articles and write-ups that when an individual or a company is served with a court document, a ticking clock may very well start to run.

A time frame within which one might have to submit a reply starts to apply. This is not to be taken lightly as should one fail to file a reply in a timely manner, the negative implications of such an inobservance may very well be irreparable.

The buzzword used in legal jargon to refer to the failure of a summoned party to respond in the manner and form required by law is a Latin-derivative term known as contumacia, or as better known in Maltese kontumaċi.

Taking proceedings before the Superior Courts as an example, should a defendant fail to file a reply within a period of 20 running days from service of a sworn application, and also fail to appear for the sittings held by the court, that defendant would have ticked all the boxes to be identified as a contumacious defendant; for he had been duly served with the initial proceedings but failed to take timely action as required by law (i.e. filing a sworn reply).

At this stage, the contumacious defendant shall be precluded from filing a sworn reply to the case and bringing evidence in his defence at all hearings; this unless he manages to show to the court that he had valid and sufficient reasons to justify his lack of a timely filing of a statement of defence, and his own absence during the hearing appointed by the court.

Contumacious defendant still deemed to be fighting the claim

When a defendant has been declared to be contumacious, what does this mean and imply for all the parties to the suit?

With respect to the defendant, his contumacious position is not to be taken as equal to an admission of the claim being brought against him. The defendant is still deemed to be contesting the claim put forth by the plaintiff at all times and is still considered to be in a procedural state of contestation. Though not necessarily present at the sittings and with the legal inability to bring forth and produce any evidence, the contumacious defendant is still considered to be putting up a fight against the plaintiff’s claims.

The plaintiff cannot take the fact that the defendant is contumacious as a green light that his claim will be automatically acceded to. The plaintiff is still legally bound to prove his own claim and bring forth the best evidence that he has in his possession in order to justify what he is requesting out of the court. The paramount rules of evidence are not to be bypassed since a legal obligation of proving one’s own case still rests on the plaintiff.

Should the plaintiff fail to substantiate and prove his own claim by sufficient and relevant proof, that same plaintiff might very well find his own case being lost in favour of the contumacious defendant.

This exact situation occurred in a judgement pronounced by the Civil Court, First Hall on October 20, 2023 in the names of Paul Demicoli et v. Joseph Farrugia et.

The facts of the case were as follows: The plaintiffs, Paul and Jason Demicoli had been engaged by the defendants to build a semi-detached villa and swimming pool in Mellieħa. Some of the material which had to be used for the building was provided by the defendants themselves. The plaintiffs filed proceedings before the First Hall of the Civil Court claiming the total sum of €157,145 from the defendants, which sum allegedly represented payments due to them for their work.

The defendants, despite being duly served with the proceedings, failed to file a reply, failed to appear during the sittings held by the court and did not attempt to prove that they had a valid reason for their failures.

In this circumstance, the court remarked on the fact that even though the defendants were considered to be in a state of contumacia, this did not mean that automatically the plaintiffs’ claims were to be acceded to. The court accounted for and remarked on its very own duty to examine whether the plaintiffs’ demands were indeed justified, and this irrespective of the fact that the defendants were considered contumacious.

After having considered the evidence tendered by the plaintiffs, namely their own viva-voce testimony, and the documentation exhibited, the court was still not convinced that the plaintiffs’ demands deserved to be upheld, and this due to the plaintiffs’ failure to show that they had indeed carried out the works for which they were demanding payment; their failure to prove the amount being claimed, and also for having failed to confirm the authenticity of the documents presented. Consequentially, the plaintiffs’s requests were rejected by the court.

Most notably, the court remarked that defendants’ state of contumacia should not have led the plaintiffs to slack in producing the best evidence in their possession to support their claim. A contumacious defendant did not equate to a curtailment of the onus of proof which rested on the plaintiff.

This judgement may still be appealed.

Dr Analise Magri is Junior Associate at Azzopardi, Borg and Associates Advocates.