Article 811 of the Code of Organisation and Civil Procedure provides for the new trial of decided causes. It’s an exceptional procedure which foresees a new trial of a cause already decided by a judgment, with such judgment being first set aside. This is only available in a limited number of instances, among which are such cases where the sworn application initiating proceedings was not served on the party cast, provided that, notwithstanding such omission, such party does not make an appearance at the trial.

Vira Gatt Butto initiated proceedings for retrial (1164/2019 CFS), explaining that on November 30, 2019, she encountered a difficulty in using her bank cards. She engaged lawyers to find out what the problem was and discovered that her bank accounts had been struck by an executive garnishee order, which was issued as a result of a judgment delivered by the First Hall of the Civil Court on November 1, 2019, in which, to her surprise, she was a party. Gatt Butto claimed that she was unaware of the proceedings and that she had never been notified of same according to law.

Succinctly, in proceedings initiated before the First Hall of the Civil Court, Josette Camilleri asked that the Malta Union Club be condemned to pay her compensation for the injuries she suffered on October 12, 2015, while working as a waitress in the Malta Union Club building. By order given during the said proceedings, the court ordered that Gatt Butto be summoned as well.

According to a statement issued by the bailiff, Gatt Butto was deemed to have been served with the proceedings on May 25, 2018, and was deemed to be in default (kontumaċi) on June 24, 2018. A copy of the sworn application was left with the receptionist of the Malta Union Club, Brian Borg Bonaci. No contestation to the suit was filed by Gatt Butto.

On November 1, 2019, the First Hall of the Civil Court found Gatt Butto liable in damages suffered by Camilleri in the incident of October 12, 2015, and, as a result, condemned her to pay the sum of €6,560.64. No appeal was lodged.

In its judgment of February 25, 2022, in the names ‘Josette Camilleri vs the Malta Union Club and Vira Gatt Butto’, the First Hall of the Civil Court dealt with Gatt Butto’s request for retrial. The court set off by noting that the remedy of retrial is of an extraordinary nature and departs from the general principle that a judgment is binding on the parties.

The guiding principle of this institute, the court noted is that, as far as possible, a judgment which has been delivered and rendered should not be easily overturned, but should only be overturned for grave reasons, such that the existence and maintenance of the said judgment would be contrary to justice and public order.

In considering whether there exist sufficient grounds for setting aside a judgment, the task of the court is to see if at least one of the circumstances referred to in article 811 of the Code of Organisation and Civil Procedure arises. Retrial, the court emphasised, is not intended to serve as a form of appeal.

The court then delved into the validity of the service of the questioned proceedings. It remarked that it has been repeatedly reiterated by local jurisprudence that the requirements of correct service are requirements of public policy and, as such, must be carefully complied with.

Ample reference was made to article 187 (1) of the Code of Organisation and Civil Procedure, which provides for two methods of service to a natural person: direct to the addressee and indirect to such persons indicated in the same provision of the law.

The court emphasised that the case at hand was testimony to the strong need for amendments in the field of service of judicial acts

In the case of direct service, this may be done by physically leaving a copy of the judicial act with the person to be served. Direct service does not need to be affected at a specific location but can be made wherever that person is located, even if out on the street.

On the other hand, in the case of indirect service, this shall be deemed to apply only if the copy of the judicial act is (i) left in the place where the person to be served resides or works; and (ii) is left in the hands of a member of the family or household or in the sole service of that person or in his or her proxy or person authorised by him or her to receive his or her mail.

It was evident that Borg Bonaci was neither a member of the family or household of Gatt Butto, nor was he her employee. Neither had it been established that Borg Bonaci was Gatt Butto’s attorney or a person authorised by her to receive her mail. The latter even stated that she had never authorised him to sign any documents on her behalf.

This version of Gatt Butto remained uncontested. It was evident for the court that in carrying out their duties, the court’s bailiffs must abide by the law on the validity of service of judicial acts. This implies that if the bailiff of the court were to serve a person by leaving judicial acts in the hands of others, he or she were to make sure that the deeds were left with one of those persons mentioned in article 187 (1) of the Code of Organisation and Civil Procedure.

The court emphasised that the case at hand was testimony to the strong need for amendments in the field of service of judicial acts. It is time, the court noted, that evidence of service is no longer made with mere stamps and handwritten words by the bailiff, which are often not even recognisable due to unclear writing.

Making reference to Council Regulation (EC) No. 1393/2007 and to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, the court invited the legislator to consider whether evidence of service should be made on a standard form provided by the registrar of courts, containing, among others, details of (i) the nature, purpose and the reference number of the judicial act to be served; and (ii) the method of service (whether by post, by hand, by posting, etc); (iii) the date, time and address of the service; (iv) name, surname and signature of the person served and, if the document is not served directly unto the person, to whom service was affected, the name, surname and signature of the person to whom it was delivered, together with the relation that such person has with the person to whom the service was to be effected; (v) the reason why the service was not effected; and (vi) the name, surname and signature of the notifying officer.

In view of the circumstances, the court, presided by Judge Christian Falzon Scerri, found in favour of Gatt Butto, ordered the retrial of the lawsuit in so far as this affected Camilleri and Gatt Butto, and ordered its judgment to be communicated to the minister responsible for justice and to the state advocate for them to verify whether there is a need for a change in the way the law regulates the service of judicial acts in civil cases.

Keith A. Borg is a partner at Azzopardi, Borg & Associates Advocates.