Actions must be filed within the prescribed time

A court turned down an action which was instituted after a 20-day period stipulated by Article 466 of the Code of Organisation and Civil Procedure. This was decided by Mr Justice Lawrence Mintoff in ARMS Limited -v- Uddin Hallim on 2 June, 2017. 

In the defendant’s application, Uddin Hallim explained that he filed the action in terms of Article 466 of the Code of Organisation and Civil Procedure, after ARMS filed a judicial letter against him in December 2016 calling upon him for payment of pending utility bills. He admitted to renting a property between 2007 and 2008, but this was then rented to another company. He left the island at that time only to return in 2016. Therefore, he could not have consumed the electricity and water that ARMS Limited are claiming. 

ARMS Limited filed a statement of defence stating among others that the action was filed beyond the 20-day period prescribed by Article 466(2), since their judicial letter was notified to Hallim on 28 November, 2016, but the action was filed on 21 December 2016. 

Article 466 reads as follows:

“466. (1) Where the head of a government department or the person vested with the legal representation of a body corporate established by law or with the legal representation of any company or other body which has been authorised by or under any law to collect any amounts due to a government department or to a body corporate established by law, desires to sue for the recovery of a debt due to a government department or to any administration thereof or to a body corporate established by law, for any services, supplies, penalties, rent, ground rent, other burdens on property, compensation for occupation and or for any licence or other fee or tax due, he may make a declaration on oath before the registrar, a judge or a magistrate wherein he is to state the nature of the debt and the name of the debtor and confirm that it is due:

“Provided that the provisions of this article shall also apply in respect of amounts due for the supply of water and electricity and for the rental of the relative meters but they shall not apply where prior to the service required under sub-article (2) the person from whom the amount is claimed shall have notified the claimant either by means of a judicial act or by registered post that he is disputing the metering, calculation or the charge in respect of such supply or rental.

“(2) The declaration referred to in sub-article (1) shall be served upon the debtor by means of a judicial act and it shall have the same effect as a final judgment of the competent court unless the debtor shall, within a period of 20 days from service upon him of the said declaration oppose the claim by filing an application demanding that the court declare the claim unfounded.”

The court agreed that from the acts of the case the action was in fact instituted 20 days after Hallim was notified of the judicial letter sent by ARMS. The last day within which the action had to be filed was on 18 December, which was a Sunday and therefore, it could have been filed by the 19th December, 2016.

The court held that various judgements had established that these time limits within which actions have to be filed are of a public order nature and cannot be ignored, even if the other party does not object. In a previous judgement Mirjana Kovecevic -v- Myoka Management Limited, the Court of Appeal held:

“Unlike prescription, for the filing of action under substantive civil law, as a rule time-barred procedures are not open to any extension, suspension or interruption, save in the exceptional circumstances envisaged by procedural law (Articles 108 and 109 of Chapter 12). Besides public order, such is motivated by reason of certainty and uniformity.”

In another judgement Anthony Mario Vella -v- ARMS Limited decided on 16 December 2014, the First Hall of the Civil Court, that even if the delay was not the fault of the plaintiff, this is not sufficient to turn down the plea.

The court then moved to uphold the plea and held that the action was null and void.

Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates