Court rules on the abandonment of a case

A court handing down judgement on 5 January, 2015, held that even if the defendants do not object to the plaintiffs asking the court to reappoint a case, the court case may not be revived once it has been declared abandoned.

This was decided by Mr Justice Joseph Zammit McKeon in Dr Nicolai Vella Falzon noe -v- Car One Europe Limited et.

The plaintiff filed an application in court on 12 June, 2014 asking that this case not be declared abandoned because the time frames listed in Art 964(1) of the Code of Organisation and Civil Procedure had not lapsed and neither had the decrees of 22 March, 2012 and 12 June, 2012. The plaintiff also asked the court to place the lawsuit on its list of cases.

Mr Justice Zammit McKeon reviewed the previous court decrees. On 12 September, 2011 the case was put off for judgement on the pleas raised, but was put off once more on 22 March, 2012. On 13 March, 2012 the plaintiff filed an application asking the court not to give its judgement and to suspend the case sine die, which could be reappointed by means of an application within three months from a decision of an arbitration which was taking place in France.

This request was upheld and the case was put off indefinitely. The defendants of the action requested the court on 28 March, 2012 to reconsider its position and to appoint a date for its hearing. This was turned down by the court. On 11 September, 2012, the plaintiff filed an application to reappoint the case once again, which was to be held on 30 October, 2012. In that sitting the plaintiff informed the court that the defendants had filed an appeal from the decree that the case was to be put off sine die, but asked that the case be put off without a date once more. This was allowed.

On 30 April, 2013 the Court of Appeal also deferred the appeal indefinitely and on 30 October, 2013 the defendants’ appeal was declared abandoned. Article 964(1) reads:

“Any cause in any court of civil jurisdiction which, after having been set down for hearing, is subsequently by order of the court adjourned to an unspecified date or otherwise suspended, shall be deemed to be deserted unless it is re-appointed for hearing by the court within the peremptory time of six months of it having been so adjourned or suspended or an application for its re-appointment has, within such period, been filed in court:

“Provided that where the cause has been suspended until judgment is pronounced in another cause, the said time shall commence to run from the date when such judgment is delivered.”

The court quoted from a Constitutional judgement, Gernot Knoess -v- The Attorney General delivered on 10 March, 2014, which held:

“The filing of the application within the six-month period is sufficient to avoid desertion even if the case is not re-appointed for hearing within that time. However, this will not apply if the application is rejected because of some irregularity or other valid reason; in that case the applicant will have to file a new, correct, application within the original six-month period.

“If it were otherwise, the mere filing of an ill-founded application will suspend the desertion indefinitely, which is absurd and was certainly not the intention of the legislator.

“The same can be said when the application is allowed under a condition. To say that this would suspend the running of time for desertion indefinitely until it pleases the applicant to observe the condition would in effect mean that the applicant would be allowed to prolong indefinitely the time within which he is to comply with the conditions set out in the re-appointment decree. This will defeat the purposes of the institute of desertion, which is meant to avoid delays due to failure by plaintiff to pursue his case diligently. The correct interpretation is that, if an application for re-appointment is allowed subject to applicant’s observing some condition (as in the present case), the applicant must satisfy that condition within the original the six-month limit unless the court for good reason – such as when the time between the delivery of the decree and the expiry of the time is unreasonably short – directs otherwise. Failing that, the case will be deemed deserted.”

The court then considered that the court action was deferred twice without a date following requests by the plaintiff. In both instances the arbitration in France was still not concluded. Mr Justice Zammit McKeon held that on the second occasion the plaintiff did not ask the court to defer the case sine die because of the proceedings in France, but because of an appeal which the defendants had lodged and as a consequence the plaintiff cannot ask that the case be put back on the list because of the proceedings in France as done the first time. Then the appeal was declared abandoned and after six months the case could not by law be reappointed. 

The court held further that Article 964(1) is based on public order and even though the defendants do not object the court is still bound to reject the request to reappoint a case if the six months have elapsed.

The court then went on to reject the plaintiff’s request.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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