At first glance, the law of procedure may seem unnecessarily restrictive, something to be conveniently used and carefully exploited by those who otherwise cannot get a favourable judgment. The idea among many is that the law of procedure is a tool that alienates from real justice.
The truth cannot be farther than that; the law of procedure has the purpose of establishing uniform rules to be respected and strictly implemented in order to determine by law the substantive issues before the courts of justice. It regulates how a court case is to be conducted against any unfair advantage of one party over the other, so as to ascertain that both sides of the case can properly present their arguments.
The law of procedure is important; that which is often considered by the public at large as unnecessary fuss on trifling matters is actually a vital part of the proper administration of justice.
Originally, procedural issues were more rigidly considered, and many a time lawsuits were rejected on account of a procedural defect. But in time, Maltese law moved away from the rigidity of the past and entered into a new era of ‘substance over form’, and today, most procedural shortcomings can be salvaged in a court of law, as long as the other party is not gravely prejudiced thereby.
A judgment delivered by the Civil Court, First Hall, decided on December 1 (Franmar Ltd v Rev. Fr Joseph Bartolo pro et noe, 395/19GM) sought to answer a curious procedural question: is a lawsuit filed against a dead person null and void?
The plaintiff had filed a lawsuit against four individuals, in an attempt to enforce a promise of sale for the purchase of a property. Two of the respondents replied, citing the nullity of the lawsuit on account of the fact that the other two defendants were dead and had been so prior to the filing of the sworn application. The argument was rather straightforward: one cannot file a lawsuit against a deceased individual. Seeing this, the plaintiff asked the court to appoint curators so that they represent the two deceased individuals.
The judgment of the court will be one to spark some debate, for it pushed the boundaries of formalities in an unprecedented fashion. Those less concerned with strict procedural formalities will see this judgment as a happy development, while traditionalists will perhaps see it as a step too many.
In its judgment, the court quoted article 789 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) which lists the instances where the plea of nullity is admissible: if the nullity is expressly declared by law, if the act emanates from an incompetent court, if the act contains a violation of the form prescribed by law, even though not on pain of nullity provided such violation has caused to the party pleading the nullity a prejudice which cannot be remedied otherwise than by annulling the act, or if the act is defective in any of the essential particulars expressly prescribed by law.
In all of these cases, the act will not be null if such defect or violation is capable of remedy under any other provision of law.
The court stated that death does not bring about the termination of one’s obligations; these are merely transferred onto the deceased person’s heirs
It stated that where any person involved in lawsuit dies while the case is being heard, the heir or executor of such party, or any other person interested may make an application for an order enabling him to continue the suit in substitution for the party deceased, or where there is no heir, curators may be appointed to represent the vacant inheritance. This procedure is known in the legal world as the ‘leġittimazzjoni tal-atti’.
When this procedure is not availed of, the suit is continued in the name of the deceased party and any judgment delivered shall be valid. The problem was that the legislator had elected not to provide for rules of procedure to be adopted when a lawsuit is filed against someone who at the time of filing had been already dead. While therefore an act filed this way is certainly defective, is the defect of such a nature that it cannot be corrected?
According to article 175 of the Code of Organisation and Civil Procedure, at any stage of the proceedings until judgment is delivered, the court may allow any of the parties to substitute any act or permit any written pleading to be amended or corrected, provided that such substitution or amendment does not affect the substance either of the action or of the defence on the merits of the case.
The introduction of this article at law pioneered the departure from the earlier excessive formalism that characterised the law of procedure.
In a bit of a brief history lesson, the court recounted how a Scottish lawyer, Sir Andrew Jameson, had protested against the excessive formalism of Maltese law, and had suggested that our law changes to follow New York procedural law, which to him contained provisions that are so evidently in conformity with reason and justice. Following this analysis, the law was amended several times, each time with a view to lessen the rigour by which the laws of procedure (many times, to the detriment of substantive justice) were considered.
The court’s power to correct mistakes in judicial act is wide and far-reaching. In this case, there was no doubt that the plaintiff’s mistake was merely a procedural one; the case was filed against two deceased individuals, instead of against the heirs or against curators, who assume the interests and obligations of the deceased.
The court stated that death does not bring about the termination of one’s obligations; these are merely transferred to the deceased person’s heirs, who are obliged at law to execute any promise the deceased had undertaken, so much that ‘an inheritance’ itself may be a party to a suit.
It would be a great illogicality for the law to provide for the substitution of a person who dies mid-case, but not for one who dies before the case starts. While technically speaking this is not a proper ‘leġittimazzjoni tal-atti’, it is a correction that article 175 of the Code of Organisation and Civil Procedure allows.
In addition to this, the court noted that when the plaintiff had requested the appointment of curators, the respondents had not objected, which means that any defect was accepted through legal acquiescence.
For these reasons, the court rejected the plea of nullity put forward by the respondents and ordered the case to continue.
However, since the pleas were valid at the moment they were made (that is prior to the court allowing the correction), the court ordered the plaintiff to pay the costs relative to this judgment.
Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.