279 tal-2008 - Regoli tal-2008 dwar il-Prattika u l-Proċeduratal-Qrati u l-Bon-Ordni

L.N. 279 of 2008

CODE OF ORGANIZATION AND CIVIL PROCEDURE

(CAP. 12)

Court Practice and Procedure and Good Order Rules, 2008

The President of Malta has approved the following Rules of

Court made by the Rule-Making Board constituted in terms of article

29 of the Code of Organization and Civil Procedure, hereinafter

referred to as "the Code".

(1) The title of these rules is the Court Practice and Citation and

coming into

Procedure and Good Order Rules, 2008.

force.

(2) These rules, other than rule 13, shall come into force

on the 11th November, 2008.

(3)

Rule 13 shall come into force on the 5th January,

2009. Part I - Court Practice and Procedure

concerning Constitutional Matters

Proceedings before the Civil Court, First Hall, under Proceedings

article 46(1) of the Constitution of Malta and under article 4(1) of the before

Court, First

European Convention Act and proceedings before the Constitutional Hall, and

Constitutional

Court in cases referred to in article 95(2) of the Constitution of Malta Court to be by

application.

shall be instituted by application.

(1) An application before the Civil Court, First Hall, Contents of

shall state concisely and clearly the facts out of which the complaint application

under articles 46

arises and shall indicate the provision or provisions of the and 95 of the

Constitution and

Constitution of Malta or of the European Convention for the article 4(1) of

Protection of Human Rights and Fundamental Freedoms alleged to the

Convention Act.

have been, to be or likely to be contravened.

(2) The application shall also specify the redress sought by the

applicant

Provided that it shall be lawful for the court, if the

application is allowed, to give any other redress within its jurisdiction

which it may consider to be more appropriate.

(3) In cases referred to in article 95(2)(a) of the Constitution of

Malta, the application before the Constitutional Court shall state

clearly and concisely the circumstances out of which the question

arises, the demand and the provision or provisions of the Constitution

or of any other law on which the applicant relies.

(4) In cases referred to in article 95(2)(c), (d), (e) and (f) of the

Constitution of Malta, the application shall state clearly and concisely

the circumstances out of which the appeal arises, the reasons of

appeal and the prayer for the reversal or a specific variation of the

decision appealed from.

(5) Default of compliance in the application with the

requirements of sub-rules (1), (2), (3) and (4) shall not render the

application null; but the court may, in any such case, order the

applicant to file, within such time as the court shall fix, a note

containing the particulars required and the costs of such order shall be

borne by the applicant.

(1) Subject to the provisions of sub-rule (3) of this rule

and rule 8, in the cases referred to the Civil Court, First Hall, as

provided in article 46(1) of the Constitution of Malta, in article 4(1)

of the European Convention Act, and in the cases referred to in article

95(2)(c), (d), (e) and (f) of the Constitution of Malta, the application

shall be served on the defendant or the respondent without delay and

the court shall fix a date for hearing within eight working days from

the date of the filing of the application, or from the filing of a reply by

respondent within the time limit therefor, or if no such reply is filed

from the expiry of such time

Provided that where the Court considers that the subject

matter of the application is not of an urgent nature, the defendant or

respondent shall always be given twenty days for the filing of the

reply.

(2) The application of appeal shall be made within twenty days

from the date of the decision appealed from, and the respondent may

file a written reply within eight working days from the date of

service

Provided that where the appeal is from a decision given

upon a reference made in accordance with article 46(3) of the

Constitution of Malta or article 4(3) of the European Convention Act,

such appeal shall be made within eight working days from the date of

the decision appealed from.

(3) The court by which a decision is given and which is

subject to appeal to the Constitutional Court, may, in urgent cases,

upon demand even verbal, by any of the parties immediately upon

delivery of such decision, abridge the time for making the appeal or

for the filing of a reply. If no such demand is made by any of the

parties immediately upon the delivery of the judgment, any one of the

parties may make such a demand by application, upon which, the

court which gave the decision shall, after summarily hearing the

parties if it thinks necessary, give the requisite order.

(1) In the cases referred to in article 46(3) of the Reference of

Constitution of Malta, article 4(3) of the European Convention Act, questions.

and article 95(2)(b) of the Constitution of Malta, the order of

reference shall state concisely and clearly the facts and the

circumstances out of which the question arises, the terms of such

question and indicate the provision or provisions of the Constitution

of Malta or of the European Convention for the Protection of Human

Rights and Fundamental Freedoms, as the case may be, allegedly

contravened.

(2) When any such reference has been made, it shall be the

duty of the Registrar, Civil Courts and Tribunals, to ensure that the

record of the proceedings or any authenticated copy thereof is

brought before the court to which the reference is made without any

delay and with urgency.

(3) The court to which the reference has been made shall, upon

any such reference, set down the cause for hearing at an early date, in

no case later than eight working days from the date on which the

record is brought before it and shall cause notice of such date to be

given to the parties and to the Attorney General.

Once a case has been set down for hearing the court shall Expeditious

ensure that, consistently with the due and proper administration of hearing

disposal of

justice, the hearing and disposal of the case shall be expeditious, and hearing.

the hearing of the cause shall as far as possible continue to be heard

on consecutive days, and, where this is not possible, on dates close to

one another.

Saving what is provided for in these rules, the provisions Application of

of the Code and any subsidiary legislation made thereunder shall Code.

mutatis mutandis apply before the Civil Court, First Hall, and the

Constitutional Court referred to in rule 2.

Part II - Court Practice and Procedure

concerning Non-Urgent Causes

Notwithstanding the foregoing provisions of these rules, Criteria

the court may opt not to appoint for hearing, between the 16th of July establishing

when causes

and the 15th of September of each year, proceedings referred to in need not be

appointed for

rule 2 when these are commenced within the said period if, in the hearing in the

opinion of the court, such proceedings of their very nature need not be summer months.

dealt with any particular haste and none of the parties will suffer any

prejudice if the hearing takes place after the 15th of September.

Part III - Court Practice and Procedure concerning Drawing up

of Lists, Hearings to be Held by Appointment, Adjournment of

Causes and Conduct of Proceedings

(1) In making the list referred to in article 194 of the

Code, the Registrar, Civil Court and Tribunals, or the Registrar, Gozo

Courts and Tribunals, as the case may be, shall act in accordance with

such instructions as may be given to him by the court, which shall

ensure that, as far as possible, causes shall be heard and decided in the

chronological order of the date of filing of the act with which the

cause was introduced in the registry of the court. Not all causes ready

for hearing shall be inserted in the list, but only as many as the Judge

or Magistrate, as the case may be, considers he can deal with in any

particular sitting

Provided that, without prejudice to anything contained in

any other law, priority shall be given in setting a cause for hearing

and in the hearing thereof to -

(i)

cases of retrial;

(ii)

spoliation suits referred to in article 791 of the

Code;

(iii)

cases of contempt of court;

(iv)

appeals from decisions of the Civil Court (Family

Section);

(v) cases dealing with recognition and enforcement of

foreign judgments;

(vi)

arbitration cases; and

(vii) cases which of their nature require to be treated with

greater expeditiousness.

(2) Witnesses summoned for a particular sitting shall, as far as

possible, be heard at such sitting.

(3) The hearing of a cause, whether at pre-trial or trial stage, or

other procedure shall, as far as possible, be by appointment for a

given time as determined by the court or by the judicial assistant, as

the case may be.

(4) Where several causes or other procedures are to be heard

during the course of any sitting, the court or the judicial assistant shall

stagger the said causes or procedures at reasonable intervals to ensure

that the parties, and witnesses if any, are not required to attend at the

same time.

(1) A cause may be adjourned in exceptional Adjournment of

circumstances only if the court is satisfied that such circumstances causes.

exist and so states in the decree ordering the adjournment specifying

those circumstances, and only on an application filed by the party

requesting the adjournment not later than fifteen working days before

the day due for hearing or, if the cause of the adjournment arises after

the expiration of the said time limit, as soon as practicable thereafter;

and the application shall specify in detail the circumstances justifying

the request and shall be confirmed on oath by the applicant or, if the

applicant is absent from Malta or is otherwise unable to confirm the

application in person, such fact shall be stated in the application.

(2) The following may be deemed to be exceptional

circumstances for the purposes of the foregoing sub-rule

(a)

the temporary illness of counsel;

(b) the agreement between the parties to refer the cause

to arbitration or mediation; and

(c)

any other exceptional circumstances which the court

considers to be serious and sufficient.

(3) In every case the circumstances justifying the request and

concession of an adjournment shall be recorded in the acts of the

proceedings.

(1) Evidence in a cause shall be heard either directly by Conduct of

the court or by means of an affidavit except in those cases where the proceedings.

nature of the case requires proof by a technical referee, who shall as

far as possible assist the court when the evidence is heard by it viva

voce, and where a need arises such evidence may be heard by the

referee, also with the assistance of a legal referee or a judicial

assistant, in a sitting fixed for the purpose.

(2) Where no pre-trial hearing has taken place, the court shall

on the first sitting of a cause ensure that the disputed issues of fact

and of law in the cause are identified and recorded in the acts of the

proceedings, and that the parties shall indicate and record in the acts

of the proceedings the specific object of each witness indicated by

them according to article 561 of the Code, also to ensure, among Cap. 12.

other things, the proper application of article 558 of the said Code.

(3) During the first sitting of each case the court shall -

(a)

either fix a date or consecutive dates for the hearing

of all the witnesses of the parties up to the adjournment of the

cause for judgment, and where it is not possible to fix

consecutive dates, to fix dates which are as near as possible to

one another, in order to reach the same objective; or

(b) if the parties agree (to a request made by one of the

parties) that all evidence be produced by means of affidavits (or

when the court is unable to fix a date for the hearing of evidence

viva voce), the court shall order specific periods during which

each party is to produce all its evidence by means of an

affidavit, and shall subsequently fix the date when the cross

examination of the witnesses who had made an affidavit shall be

heard, if such cross examination is requested.

(4) The terms referred in sub-rule (3) may be extended by the

court for valid and serious reasons which shall be indicated in the

order granting the extension.

(5) Where a witness refuses to co-operate with any of the

parties and refuses to make an affidavit, such party shall file an

application as is referred to in article 173(2) of the Code, in sufficient

time so that such witness shall appear and give evidence before the

judicial assistant in accordance with the said article.

(1) The appointment of legal referees shall be restricted

to special and particular cases where a real necessity arises because

the cause requires specialized knowledge in a particular field of law.

On any such appointment the court shall indicate clearly and

precisely in the decree the reasons and justification for such an

appointment.

(2) In cases where such legal referees are appointed, evidence

shall be produced by means of a sworn statement (affidavit) or

otherwise as the court may direct and within such time as shall be

stated in the decree appointing the referees. The court may in each

case order the legal referee to report to it on such dates as indicated by

the court, so that the court shall be in a position to ascertain that its

orders have been complied with. The court shall fix a date for the

definitive filing of the report.

Part IV - Court Practice and Procedure

The Pre-Trial Procedure

(1) When a cause has been assigned to a Judge he shall, Pre-trial

as soon as practicable, give such orders as provided in article 173 of hearings

the Civil Court,

the Code as may be conducive to an expeditious conclusion of the First Hall.

written pleadings.

(2) The Registrar shall keep a record of when a cause has been

assigned to a Judge and of the date and time when the Deputy

Registrar assigned to the Judge shall have signed for the relevant act

or acts.

(3) Without prejudice to sub-rule (1) and to any other law

providing for special procedures, a Judge shall in any case order, not

later than fifteen days from when the Deputy Registrar shall have

signed for the relevant act or acts, that the acts by which the

proceedings are commenced be served on the defendant or

respondent, as the case may be.

(4) Before the conclusion of the written pleadings, orders in

terms of article 173 of the Code shall, as a rule, be limited to seeking Cap. 12.

more detailed information or clarification regarding the acts by which

the proceedings are commenced.

(5) After the written pleadings have been concluded, the Judge

may give such orders as provided in article 173 of the Code as may be Cap. 12.

conducive to the proper conduct of the pre-trial or trial hearing.

(6) Unless a cause is appointed for a trial hearing, it shall be

appointed for a pre-trial hearing. A cause shall be appointed for a pre-

trial hearing not later than two months after the conclusion of the

written pleadings

Provided that causes which are pending on the date of

entry into force of this rule and which have not been appointed for a

pre-trial hearing shall be so appointed within a period of six months

from the said date.

(7) The pre-trial hearing shall be presided by the Judge or by a

judicial assistant acting under the guidance and directives of the

Judge. Whenever possible, pre-trial hearings shall be held in the

afternoon.

(8) Unless otherwise provided by any other law, pre-trial

hearings shall be held in open court, but hearings and decrees or

orders of the Judge or judicial assistant dealing solely with the

management of the case may be held or given, as the case may be, in

camera.

(9) A list of causes set down for pre-trial hearings shall be

posted by the registrar as provided in article 194 of the Code.

(10) The purpose of the pre-trial hearing is to

(a)

identify the factual and legal issues involved in the

case;

(b) examine the possibility of an agreed settlement or

application for conciliation or mediation process before

proceeding further with the cause;

(c)

establish who the interested parties are, make any

necessary corrections to their designation and establish whether

any other parties should be joined to the suit or should intervene

in the cause;

(d) establish whether any corrections need to be made to

the written pleadings and enter such corrections in the records

of the cause;

(e)

determine with exactness the demand of the plaintiff

relative to the amount being claimed or the object being sought;

(f)

examine the need or otherwise to appoint technical

referees and their precise terms of reference, and, when so

necessary, to appoint such referees;

(g) list the points of fact that the parties agree upon and

the points of fact that the parties do not agree upon and on

which the Judge or judicial assistant will require evidence as

being points of fact crucial to the determination of the cause;

(h) list the points of law which will require argument

and determination and the time within which the advocates of

the parties may present written arguments in such form or

manner as the Judge or judicial assistant shall direct;

(i)

identify the witnesses and documents which the

Judge or judicial assistant determine as being necessary for

determining the cause, the ruling on the admissibility of

witnesses and documents, and whether witnesses will be heard

viva voce or by affidavit and the time within which the Judge or

judicial assistant will require each party to present such

evidence;

(j)

determine any other thing or process (including the

collection of evidence) and to establish any other procedure or

time limit which in the opinion of the Judge or judicial assistant

may bring the cause to an early determination

Provided that whenever a pre-trial hearing is presided by a

judicial assistant the provisions of article 97C of the Code shall be Cap. 12.

observed.

(11) Subject to the provisions of any other law dealing with

mediation, conciliation or arbitration, the Judge or judicial assistant

may refer the parties -

(a)

to a mediation or conciliation process if he deems fit

that the cause is susceptible to a mediated agreement and that

the parties have shown their willingness to attempt such

conciliation, or

(b)

to arbitration if the parties so request.

The Judge or judicial assistant shall resume the pre-trial

hearing of the cause not later than three weeks after either party has

informed the court in writing that the conciliation or mediation

process has not succeeded, and shall resume the said hearing in any

case not later than three months from the date on which the parties

were referred to mediation or conciliation.

(12) The pre-trial hearing of a cause may be held in the course

of a number of sittings; but a cause shall not, except for special

reasons to be expressly noted in the relative minute, be adjourned for

a period exceeding three months.

(13) When the Judge or judicial assistant consider that the cause

should proceed to the trial hearing, the said cause shall be set down

for trial hearing on a specified date and at a specified time, and the

provisions of article 195(4) of the Code shall apply. When such date Cap. 12.

and time has not been determined during a pre-trial hearing it shall be

sufficient if the notice of the trial hearing be communicated to the

advocates of the parties at least two months prior to the date fixed for

the hearing.

(14) All evidence or remaining evidence shall be produced, and

submissions shall be made, during the trial hearing, after which the

cause shall be put off for judgment, which may be delivered on the

same day of the hearing.

(15) The foregoing provisions of this rule shall not apply to the

Civil Court (Family Section), the Court of Magistrates (Malta) and to

the Court of Magistrates (Gozo) in its inferior jurisdiction.

Part V - Court Practice and Procedure

Services and Communications

The following rules shall be observed by the Civil Court,

First Hall, and by the Court of Magistrates (Gozo) in its superior

jurisdiction in effecting services and communications

(a)

when a court orders in terms of article 173 of the

Code that an order or a directive in camera is to be

communicated to an advocate and in the case of any other

communication to an advocate, such communication shall be

executed by an executive officer of the court either personally

or by means of a registered letter addressed to such advocate at

the address provided by him in terms of article 174(2)(c) of the

said Code;

(b) when a court orders in terms of article 173 of the

Code that service of an order or a directive in camera is to be

served upon an advocate, it shall be served in terms of article

187 of the said Code as the court shall direct;

(c)

when a time limit has been established in an order or

directive made as aforesaid, the said time limit shall be a

reasonable one; and such time limit shall begin to run from the

date when the communication or the service, as the case may be,

has been effected: provided that where the communication or

service, as the case may be, is effected by means of a registered

letter, such time limit shall commence to run from the date that

the registered letter has been consigned at the given address;

(d) the Registrar, Civil Courts and Tribunals, and the

Registrar, Gozo Courts and Tribunals, as the case may be, shall

refuse to accept the filing of a written pleading or any other

judicial act which is to be served unless such written pleading or

judicial act complies with the provisions of article 174(2)(c) of

the Code; and the said Registrars shall not accept any such

written pleading or judicial act where the professional address

of an advocate is indicated as that being within the precincts of

the courts’ building;

(e)

the communication of an act to an advocate which is

not mandatory at law but is made by the court by way of

courtesy (as is the case with communication of a court minute or

deposition of witnesses) shall continue to be effected by being

left at the office of the Chamber of Advocates: provided that

were the necessary arrangements are made for copies of such

court minutes, evidence and other judicial acts, to be

communicated by electronic mail, such documents shall be

marked as "informal" and shall be forwarded by a member of

the judiciary team to the said advocate.

Part VI - Service of Judicial and Extrajudicial Documents

(1) Notwithstanding the provisions of Part II of the Service of

Legal Procedures (Ratification of Conventions) Act, the provisions of judicial

extrajudicial

Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service documents

between EU

in the Member States of judicial and extrajudicial documents in civil or Member States.

commercial matters continue to apply to matters falling within the Cap. 443.

scope of that Regulation as published in the Official Journal of the

European Communities on 30th June 2000 (L160/37 to 52).

(2) The provisions of Part II of the Legal Procedures Cap. 443.

(Ratification of Conventions) Act incorporating into Maltese Law the

Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters which was signed at The

Hague on 15th November, 1965, shall continue to apply to those state

parties to the said Convention and to those European Union Member

States who are not participating and bound by the provisions of

Council Regulation EC No 1348/2000 aforesaid (and any

amendments thereto which might be applicable to Malta from time to

time).

(3) The central authority shall cause the document to be served

by attaching the document to an application filed in the Registry of

the Civil Court, First Hall, in the case of documents to be served in

the Island of Malta, and in the Registry of the Court of Magistrates

(Gozo) in its superior jurisdiction, in the case of documents to be

served in the Islands of Gozo and Comino, to be served on the person

addressed together with such document, and such judicial letter and

accompanying document shall be served in accordance with the

methods prescribed in article 187 of the Code of Organization and Cap. 12.

Civil Procedure or article 7 of the Legal Procedures (Ratification of Cap. 443.

Conventions) Act, as the case may be, as the central authority may

deem fit to specify in the circumstances of each case.

(4) Where in any civil or commercial matter pending before a

court or tribunal of a foreign country which is not bound by the

Regulation mentioned in sub-rule (1) above and by the Convention

mentioned in sub-rule (2) above, a letter of request from such court or

tribunal for service on any person, in Malta, of any process or citation

in such matter, is transmitted to any of the superior courts, with an

intimation that it is desirable that effect should be given to the same,

the following procedure shall be adopted

(a)

the letter of request for service shall, unless it is

drawn up in the English language, be accompanied by a

translation thereof in the English language, and by two copies of

the process or citation to be served, and two copies thereof in

the English language;

(b) service of the process or citation shall be effected by

one of the court executive officers of the superior courts;

(c)

such service shall be effected in accordance with the

provisions of article 187 of the Code or Organization and Civil

Procedure;

(d) after service has been effected, the process server

shall return to the Registrar, Civil Courts and Tribunals, or the

Registrar, Gozo Courts and Tribunals, as the case may be, one

copy of the process together with the evidence of service by a

declaration on oath of the person effecting the service, and

particulars of charges for the cost of effecting such service;

(e)

the particulars of charges for the cost of effecting

service shall be submitted to the Registrar, Civil Courts and

Tribunals, or to the Registrar, Gozo Courts and Tribunals, as the

case may be, who shall certify the correctness of the charges or

such other amount as shall be properly payable for the cost of

effecting service;

(f)

the Registrars shall transmit through the Attorney

General to the Minister of Foreign Affairs the letter of request

for services received from the foreign country, together with the

evidence of service, with a certificate appended thereto duly

sealed. Such certificate shall be in the form numbered 3 as set

out in the Annex A to these rules.

(5) In the execution of commissions rogatoires and letters of

request emanating from a court out of Malta, in the examination of

witnesses in regard to civil and commercial matters pending before a

court out of Malta, the forms numbered 1 and 2 set out in the Annex

A to these rules shall be used.

Part VII - Taking of Evidence Abroad

(1) Notwithstanding the provisions of Part III of the Taking of

Legal Procedures (Ratification of Conventions) Act, the provisions of evidence

between EU

Council Regulation (EC) No 1206/2001 of the 28 May 2001 on Member States.

cooperation between the courts of the Member States in the taking of

evidence in civil or commercial matters continue to apply to matters

falling within the scope of that Regulation as published in the Official

Journal of the European Communities on 27 June 2001 (L 174/1 to

24).

(2) The provisions of Part III of the Legal Procedures Cap. 443.

(Ratification of Conventions) Act incorporating into Maltese Law the

Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters which was signed at The Hague on 18th March,

1970, shall continue to apply to those state parties to the said

Convention and to those European Union Member States who are not

participating and bound by the provisions of the Council Regulation

(EC) No 1206/2001 aforesaid (and any amendments thereto which

might be applicable to Malta from time to time).

(3) The Civil Court, First Hall, the Civil Court (Family

Section), the Court of Magistrates (Malta) and the Court of

Magistrates (Gozo) sitting both in its superior and inferior

jurisdiction, shall have jurisdiction to execute letters of request made

in terms of Council Regulation (EC) No 1206/2001.

Part VIII - Recognition and Enforcement of Judgments

(1) Further to the provisions of article 825A of the Recognition and

Code, the provisions of Council Regulation (EC) No 44/2001 of 22 enforcement

judgments.

December 2000 on jurisdiction and the recognition and enforcement Cap. 12.

of judgments in civil and commercial matters continue to apply to

matters falling within the scope of that Regulation as published in the

Official Journal of the European Communities on 16 January 2001.

(2) The Civil Court, First Hall, in the case of judgments to be

recognised or enforced in the Island of Malta, and the Court of

Magistrates (Gozo) in its superior jurisdiction, in the case of

judgments to be recognised or enforced in Gozo or Comino and, on

appeal, the Court of Appeal, and in the case of a maintenance

judgment the Registrar, Civil Courts and Tribunals, and the Registrar,

Gozo Court and Tribunals, as the case may be, shall have jurisdiction

to recognised or enforce foreign judgments in civil and commercial

matters made in terms of Council Regulation (EC) No 44/2001 (and

any amendments thereto which might be applicable to Malta from

time to time).

Part IX - Jurisdiction, Recognition and Enforcement of

Matrimonial and Parental Responsibility Judgments

(1) Notwithstanding the provisions of the Child

Abduction and Custody Act, hereinafter in this Part referred to as "the

Act", the provisions of Council Regulation (EC) No 2201/2003 of 27

November 2003 on jurisdiction and the recognition and enforcement

of judgments in matrimonial matters and the matters of parental

responsibility continue to apply to matters falling within the scope of

that Regulation as published in the Official Journal of the European

Communities on 23 December 2003 (L 174/1 to 24).

(2) The Civil Court (Family Section) or the Court of Magistrates

(Gozo) (Family Section) (Superior Jurisdiction), as the case may be, and

on appeal, the Court of Appeal, shall ensure that it complies with the

provisions of Council Regulation (EC) No 2201/2003 of 27 November

2003 (and any amendments thereto which might be applicable to Malta

from time to time) and, without prejudice to the generality of the

foregoing, in the case of wrongful removal or retention of a child from

within a Member State to which that Regulation applies, the court seized

of the matter, when applying Articles 12 and 13 of the 1980 Hague

Convention aforesaid, shall ensure that it applies the provisions of

Article 11 of the aforesaid Council Regulation.

(3) Proceedings under article 11 of the aforesaid Council

Regulation shall be instituted by application. The application shall

state the facts clearly and concisely and shall be accompanied by such

documents referred to in rule 19(3). Rules 19(4) to 19(11) shall also

mutatis mutandis apply.

(1) The provisions of this rule and of Parts I and II of

the Act incorporating into Maltese Law the Convention on the Civil

Aspects of International Child Abduction which was signed at The

Hague on the 25th October 1980 and the European Convention on

Recognition and Enforcement of Decisions concerning Custody of

Children and on the Restoration of Custody of Children which was

signed in Luxembourg on 20th May, 1981, shall continue to apply to

those state parties to the said Convention and to those European

Union Member States who are not participating and bound by the

provisions of Council Regulation (EC) No 2201/2003 aforesaid.

(2) Proceedings under article 6 of the Act, before the Civil

Court (Family Section) or the Court of Magistrates (Gozo) (Superior

Jurisdiction) (Family Section), as the case may be, may be instituted

by application.

(3) For the purposes of article 6 of the Act, the application

shall state the facts clearly and concisely and shall be accompanied by

a duly authenticated copy of the decision or determination where

available or other documentation which the central authority may

deem proper, delivered in another Contracting State other than Malta

of the Convention on the Civil Aspects of International Child

Abduction, which was signed at the Hague on the 25th October, 1980.

(4) In any application filed in the Court of Appeal, the

application shall state clearly and concisely the circumstances out of

which the appeal arises, the reasons of appeal and the prayer for the

reversal or a specific variation of the decision appealed from.

(5) Default of compliance in the application with the

requirements of sub-rules (3) and (4) shall not render the application

null; but the court may, in any such case, order the applicant to file,

within such time as the court shall fix, a note containing the

particulars required, and the costs of such order shall be borne by the

applicant.

(6) The Civil Court (Family Section) or the Court of

Magistrates (Gozo) (Superior Jurisdiction) (Family Section), as the

case may be, shall set the case for hearing within four working days

from the day when the application is filed in court.

(7) The application shall be served on the respondent without

delay.

(8) Once a case has been set down for hearing, the court seized

of the matter shall ensure that the hearing of the case shall be

expeditious, and the hearing of the case shall continue to be heard on

consecutive days, and where this is not possible on dates close to one

another. The court shall subsequently give its decision without any

delay.

(9) Any application for appeal shall be made within eight

working days from the date of the delivery of the decision and the

respondent may file a written reply within eight working days from

the date of service or within such shorter period as the court may

determine.

(10) The Court of Appeal shall fix a date for hearing within

eight working days from the date of the filing of the application, or

from the filing of a reply by the respondent within the time limit

therefor, or if no such reply is filed from the expiry of such time.

(11) The Court of Appeal shall give a final decision without any

delay.

(1) An application for the registration of a custody

decision made by any authority in a Contracting State, other than

Malta, of the European Convention on Recognition and Enforcement

of Decisions concerning Custody of Children and on the Restoration

of Custody of Children signed in Luxembourg on the 20th May, 1980,

shall be made in the Registry of the Court of Appeal and shall be

accompanied by an authentic copy of the decision.

(2) The application shall include any other relevant documents

and the names and addresses of the persons who have to be notified

about the filing of the application.

(3) The Court of Appeal may by order give directions to

ensure the disclosure of any information about any child who is the

subject of proceedings under Part II of the Act and to safeguard his or

her welfare.

(4) Upon registration of a custody decision, the Deputy

Registrar of the Court of Appeal shall notify the Director responsible

for Welfare and such other person as the court may deem necessary of

such registration and date thereof.

(5) Where any registration of a decision as provided for in

article 19(1) and (2) of the Act is cancelled or varied, the Court of

Appeal shall notify such cancellation or variation to the persons who

had been notified of the registration of the decision, the Director

responsible for Welfare and such other person as the court may deem

necessary.

Part X - References to the Court of Justice

of the European Communities

(1) It shall be the responsibility of the court, not the

parties, to settle the terms of the reference to the Court of Justice of

the European Communities. The reference shall identify as clearly,

succinctly and simply as the nature of the case permits the question to

which the Maltese court seeks an answer. It is very desirable that

language should be used which lends itself readily to translation.

(2) The referring court shall in a single document scheduled to

the order

(a)

identify the parties and summarise the nature and

history of the proceedings;

(b) summarise the salient facts, indicating whether these

are proved or admitted or assumed;

(c)

make reference to the rules of national law

(substantive and procedural) relevant to the dispute;

(d)

summarise the contentions of the parties so far as

relevant;

(e)

explain why a ruling of the Court of Justice of the

European Communities is sought, identifying the provisions of

Community law whose effect is in issue;

(f)

formulate, without avoidable

complexity,

the

question(s) to which an answer is requested.

(3) Where the document is in effect a decree, as will often be

convenient, passages which are not relevant to the reference shall be

omitted from the text scheduled to the order. Incorporation of

appendices, annexes or enclosures as part of the document shall be

avoided, unless the relevant passages lend themselves readily to

translation and are clearly identified.

(4) The referring court shall ensure that the order of reference,

when finalised, is promptly passed to the Registrar, Civil Courts and

Tribunals, or the Registrar, Gozo Courts and Tribunals, as the case

may be, so that it may be transmitted to the Court of Justice of the

European Communities without avoidable delay.

(5) The title of the referring court shall also be clearly stated.

Part XI - Court Practice and Procedure regarding

Witnesses Not Subpoenaed

Whoever, not being served with a subpoena to give Witnesses not

evidence in a cause pending in the superior courts, is requested by any subpoenaed.

of the parties to give his deposition, shall, whenever he attends at the

court, without being examined, give notice of the said request to the

deputy registrar who shall make a record thereof to be inserted in the

proceedings.

In proceedings before referees, the said notice shall be Proceedings

given, at the end of the sitting, to the referee, who shall make the before referees.

record aforesaid.

In default of such notice, no fee shall be allowed by the Fee for

registrar for any attendance in regard to which that notice shall not attendance.

have been given.

Part XII - Of Wearing Apparel for Advocates and Legal

Procurators, and Members of a Disciplined Force

(1) Advocates appearing before any of the superior

courts and before the Court of Magistrates (Gozo) in its superior

jurisdiction at the hearing of any cause shall wear a dark blue,

charcoal grey or black suit or pin-striped trousers and black jacket, a

white shirt with a black, grey or white tie or bow-tie and black gown.

Lady advocates appearing before the said courts shall wear black or

blue or charcoal grey suits, or a white blouse and a black skirt, under

a black gown. A Judge or Magistrate may for good reason dispense an

advocate from wearing a gown.

(2) Any advocate not complying entirely

with

these

requirements shall not have the right of audience.

(3) Advocates and lady advocates appearing before any of the

inferior courts shall comply with the provisions of sub-rule (1) but

shall be dispensed from the need to wear a gown.

(4) The provisions of sub-rule (3) shall apply, mutatis

mutandis, to legal procurators.

(5) (a)

Members of a disciplined force appearing before

any of the superior courts and before the Court of Magistrates (Gozo)

in its superior jurisdiction in the course of the exercise of their duties

or in connection with their duties, shall wear their normal uniform. If

such uniform includes a jacket or tunic, this is also to be worn.

Commissioned and Gazetted officers shall always wear their jacket or

tunic.

(b) Members of a disciplined force appearing before

any of the Inferior Courts in the course of the exercise of their duties

or in connection with their duties, shall also wear their normal

uniform.

(c)

The court may dispense a member of a disciplined

force from wearing a uniform.

Part XIII - Maintenance of Good Order in the Courts of Justice

(1) No person shall, under the penalties laid down in

article 990 of the Code -

(a)

except in such areas as may be designated for the

purpose by the Director General (Courts) with the consent of the

Chief Justice, expose for sale or sell any kind of food or other

things within the precincts of the Courts of Justice, or, except in

such areas as so designated, eat or partake of food or beverages

within such precincts; or

(b) smoke within the precincts of the Courts of Justice

in such areas to which the public have access other than in such

areas as may be designated for that purpose by the Director

General (Courts) with the consent of the Chief Justice; or

(c)

vociferate, within the precincts of the Courts of

Justice, in a manner to disturb the sittings of the court; or

(d) keep any ringing mechanism of any mobile or

cellular phone or any other similar device switched on within

any hall where the court sits, during a sitting of the court or

tribunal; or

(e)

bring within the precincts of the Courts of Justice,

any child under the age of thirteen years, except where such

child has been summoned as a witness before a court or other

tribunal sitting within the said precincts, or where such court or

tribunal is of the opinion that the presence of the child is

required in connection with any proceedings before it, or as may

otherwise be provided by the Director General (Courts) with the

consent of the Chief Justice; or

(f)

enter within the precincts of the Courts of Justice

without complying with the security procedures in force as

established by the Director General (Courts); or

(g) during the hearing of a case in any hall take, or

attempt to take, any photograph or film by any means

whatsoever, except when the taking of such photograph or film

has been ordered or authorised by a court or tribunal in

connection with any proceedings before it; or

(h) take or attempt to take anywhere within the

precincts of the Courts of Justice any photograph or film by any

means whatsoever without the permission of the Director

General (Courts) and the Chief Justice; or

(i)

except as provided for by law with the permission of

the Director General and the Chief Justice take or attempt to

take any voice recording.

(2) Where any act as is mentioned in sub-rule (1) occurs

during the hearing of a case, the Judge or Magistrate, or in the case of

a collegial court, the president of that court shall summarily proceed

as provided in article 990 of the Code after hearing the person to Cap. 12.

whom the act is attributed; and in all other cases the procedure

prescribed in article 68(3) of the said Code shall be followed.

(1) Every court executive officer may refuse entry into

the precincts of the Courts of Justice or into any courtroom to any

person who, in his opinion, is not properly dressed

Provided that where such person has been summoned to

appear before a court or tribunal the said officer shall, before

proceeding further, inform the Judge, Magistrate or member of the

tribunal before whom that person was due to appear, and shall take

instructions from the said Judge or Magistrate or member of the

tribunal as to how he should proceed.

(2) The Director General (Courts) shall, from time to time,

inform the general public as to the type of dress which is regarded as

unacceptable within the precincts of the Courts of Justice.

Part XIV - Forensic Year Sessions, Court Vacations

and Leave of Absence

(1) The forensic year shall commence on first October

of each year and the forensic year is divided into three sessions

(a)

the first is called the Victory session and commences

on the first of October;

(b) the second is called the session of Epiphany and

commences on the seventh of January; and

(c)

the third is called the session of Pentecost and

commences on the Thursday after Easter Sunday.

(2) In each session there shall be vacations in the superior

courts, with the exception of the Voluntary Jurisdiction Section and

the Family Section of the Civil Court.

(3) Court vacations shall be as follows:-

(a)

in the Victory session from the seventeenth of

December to the sixth of January inclusively;

(b) in the session of Epiphany, the vacations shall be

from Wednesday in Holy Week to the Wednesday after Easter

Sunday inclusively; and

(c)

in the session of Pentecost, from the sixteenth of

July to the fifteenth of September inclusively.

(4) The vacations in the inferior courts shall be during the

month of August of each year and during the periods mentioned in

sub-rule 3(a) and (b) above.

(5) Notwithstanding the provisions of sub-rules (3) and (4),

the superior and inferior courts may sit on any day and at any time for

reasons of urgency as decided by the court on the request or with the

approval of both parties or for any other reason whatsoever as

determined by the court provided that the said reason is registered in

the records of the case.

(1) Except where a Judge is away from Malta on a visit, Leave of

or to attend a seminar, conference or other similar meeting, as absence.

approved by the Chief Justice or by the Judicial Studies Committee,

he shall apply to the Senior Administrative Judge for leave of

absence, including where necessary leave to be away from Malta, at

least three days before such leave is required. The Senior

Administrative Judge shall, before granting such leave, ensure that

adequate arrangements have been made for urgent matters, which

may arise in the court to which that Judge is assigned, to be dealt with

by another Judge and, where the Judge seeking such leave ordinarily

sits in a collegial court, the Senior Administrative Judge shall consult

with the president of that court.

(2) Without prejudice to the provisions of article 547(2) of the

Criminal Code, except where a Magistrate is away from the Islands Cap. 9.

on a visit, or to attend a seminar, conference or other similar meeting,

as approved by the Chief Justice or by the Judicial Studies

Committee, he shall apply to the Senior Magistrate for leave of

absence, including where necessary leave to be away from Malta, at

least three days before such leave is required. The Senior Magistrate

shall, before granting such leave, ensure that adequate arrangements

have been made for urgent matters, which may arise in the court to

which that Magistrate is assigned, to be dealt with by another

Magistrate.

(3) The provisions of the foregoing sub-rules, shall, mutatis

mutandis, apply to the Senior Administrative Judge and the Senior

Magistrate, sohowever that in their case they shall apply to the Chief

Justice.

Part XV - Revocation and Saving

The following Rules of Court are hereby revoked

Revocation and

Saving.

(a)

the Execution of Commissions Rogatoires and S.L. 12.02

Letters of Request Rules of Court;

(b) the Rules of Court for the Maintenance of Good

Order in the Courts of Justice;

(c)

the Rules of Court Regarding Witnesses not

Subpoenaed;

(d) the Judicial Acts (Confirmation on Oath) Rules of

Court; and

(e)

the Court Practice and Procedure Rules.

ANNEX A

[Rule 15(4)]

Form No. 1

Order for the Examination of Witnesses

The Court of Appeal

In the manner of a (civil or commercial) proceeding now pending before (a)

intituled as follows

Between

Applicant

and

Respondent.

Upon reading the affidavit (if any) of

filed the

day of

and the certificate of (b)

that proceedings are pending in (a)

in (c)

and

that such Court is desirous of obtaining the testimony of (d)

It is ordered that the said witness do attend before (e)

who is hereby

appointed examiner herein, at (f)

on the day of

at

o’clock, or such other day and time as the said examiner may appoint, and do there submit

to be examined upon oath or affirmation, touching the testimony so required as aforesaid, and

do then and there produce (g)

And it is further ordered that the said examiner do take down in writing the evidence of the

said witness or witnesses, according to the rules laid down in the Code of Organization and

Civil Procedure; and do cause each and every such witness to sign his or her deposition in his,

the said examiner’s, presence; and do sign the deposition taken in pursuance of the order, and

when so completed, do transmit the same together with this order, to the Registrar of Courts for

transmission through the official channel to the president of the said tribunal desiring the

evidence of such witness or witnesses.

Dated this

day of

(a)

Description of foreign tribunal.

(b)

Name and description of the Ambassador, Minister, Diplomatic Agent or Consul of the

foreign country.

(c)

Name of foreign country.

(d)

Names of witnesses.

(e)

Name and address of examiner.

(f)

Place appointed for examination.

(g)

Description of documents, if any, required to be produced.

Form No. 2

Certificate

I,

Registrar of Courts, hereby certify that the documents

annexed hereto are

(i)

the original order of the Court of Appeal dated the

day of

20 made

in the matter of

pending in the Court of

at

in the

of

directing the examination of certain witnesses to be taken before

; and

(ii)

the examination and the depositions taken by the

, pursuant to the said order and duly signed and completed by him on the

day

of

Dated this

day of

Form No. 3

Certificate of Service of Foreign Process

I,

Registrar, Civil Courts and Tribunals, in Malta, hereby

certify that the documents annexed hereto are as follows

(i)

the original letter of request for service of process received from the court or tribunal

at

in the

of

versus

and

(2)

The process received with such letter of request; and

(3)

The evidence of service upon the person named in such letter of request.

And I certify that such service so proved is such as is required by the Code of Organization

and Civil Procedure of Malta and its Dependencies. And I certify that the cost of effecting such

service amounts to the sum of €

Dated this

day of

Mitbug] fl-Istamperija tal-Gvern - Printed at the Government Printing Press

€2.24