The Suspension of Legal & Judicial Times in Light of the COVID-19 Pandemic
The information contained in this Review Article is for informational purposes only and should not be considered as legal advice. Article completed on 26th March 2020.
This Review Article shall analyse the latest Legal Notices which came into effect in light of the COVID-19 outbreak, and in providing a compact understanding of the suspension of legal and judicial times in light of these newly promulgated laws. The content of this Review Article is based on the Legal Notices published up till 24th March 2020.
Malta has ground to a halt – and correspondingly, so has the running of any legal and judicial periods. We are living in unprecedented times in which drastic measures had to be resorted to by governments across the world in order to address the COVID-19 pandemic. Malta is no exception and so, in an attempt to further contain the virus, the courts in Malta have been ordered to close and legislation had to be put in place in order to suspend, but all judicial and legal terms were suspended. Logically, this begs the question: How and in what manner does this imposition of the suspension of legal and judicial terms affect me?
Closure of the Courts of Justice
The Courts of Justice along with the court registry were ordered to be closed as from Monday 16th March 2020, in terms of Legal Notice 65 of 2020 entitled ‘Closure of the Courts of Justice Order, 2020’. This order was directed at the closure of any courts, and has been amended in terms of Legal Notice 97 of 2020, which now refers to “designated court”.
The affected courts are therefore the superior courts and the inferior courts including appellate courts irrespective of their competence or jurisdiction, and also includes any tribunal established by law and any boards, commissions, committees or other entities which operate from the building of the Courts of Justice before which any proceedings are heard or procedures undertaken and which are subject to legal, judicial or administrative time limits for filing any claims, defences or other acts. Both the courts, tribunal and other entities and their registries have been ordered to be closed. In relation to the aforementioned tribunals, boards, commissions, committees or other entities, The Legal Notice specifically mentions that Industrial Tribunal, the Employment Commission, the Committee of Inquiry (Deprivation of Citizenship), the Partition of Inheritances Tribunal and the Information and Data Protection Appeals Board fall under this legal notice and are therefore closed. However, this list is by no means finite
The Legal Notice also suspends the filing of acts before any court following the conclusion of proceedings before any tribunal, board, commission, committee or other entity which does not operate from the Courts of Justice. Examples of this is the right of appeal to the Court of Appeal following a decision of the Environment & Planning Review Tribunal, and a right to contest a decision of the Lands Authority before the Administrative Justice Tribunal. The suspension ceases following the lapse of the period of 20 days from the date of the repeal of the closure order.
The latest legal notice (Notice 97) has amended Legal Notice 65 in the sense that, whereas the first legal notice ordered the closure of all tribunals and boards, irrespective of whether they operate from the court building or not, the latest legal notice has restricted the closure to those tribunals which operate from the court building
The decision to close the courts and court registry was taken by the authorities following a directive by the Chamber of Advocates, issued just hours before the first Legal Notice was published, in which it instructed its members that with effect from 16th March 2020 no lawyer should attend any Court or Tribunal sitting until a different directive is issued.. Nevertheless, after such action taken by the Chamber, the Justice Ministry agreed to suspend court proceedings and issued the Legal Notice referred to above.
Importantly, this does not exclude the filing of urgent matters before the Courts, if need be. In fact, if an issue arises which requires immediate legal action, one may file an application asking the Court to order the opening of the registry for the purpose of filing the urgent judicial act. Filing will only be allowed if the opening of the registry is deemed justified by the courts. The procedure is not new but is resorted to in order to file acts outside the opening hours of the court registry.
Promise of Sale Agreements, Notarial and Related Matters
A number of legal notices have been published following the outbreak of Covid-19, with the first one (Legal Notice 43 of 2020) having been published a mere five days after the first reported cases in Malta. Additional legal notices have since been published, and this original one has since been repealed and substituted. This matter is now regulated by Legal Notice 75 of 2020 entitled ‘Suspension of Legal Times relating to Promise of Sale Agreements, Notarial and other related matters (Epidemics and Infectious Disease) Order, 2020’.
This latest Order has combined the above-discussed imposition for the closure of the Courts with the suspension of legal times relating to promise of sale agreements, notarial and other related matters, by providing that whenever the Superintendent of Public Health orders the closure of the courts, for the purpose of guarding against infectious diseases, this order shall suspend the running of all the legal terms imposed on a notary public to register any deed, will, act or private writing. This closure has also suspended the period imposed by law on notaries to pay taxes collected by them or any term related to fiscal benefits, incentives or exemptions or any period within which a notary is to submit any information or documentation to any authority or regulator pursuant to relevant notarial activity. Therefore this order is protecting the position of the parties to an agreement but also the public notaries who are bound by law to register public contracts at the Public Registry within 15 working days of their publication and to submit documentation and information and would otherwise incur a fine if this is not done on time.
This suspension shall last until 20 days following the repeal of the closure order by the Superintendent of Public Health.
The order has also suspended the expiration of any term in any promise of sale agreement which would have been registered in terms of law with the Commissioner of Revenue within the period established by law whilst the order for closure of the courts is in force, without the need of any signatures or formal renewals by the parties themselves.
Promise of sale agreements or “konvenji” typically consist of the obligation of a seller to transfer property to a buyer who is also bound to acquire that same property. Agreements need to be registered by a public notary with the Commissioner for Revenue within 14 days of signing failing which they no longer remain valid. These promises contained in an agreement expire after a specified period of time which is normally stated in the agreement itself and only survive in favour of either of the parties if that party files a judicial letter before the period expires, calling on the other party to finalise the deed of sale, and then files a lawsuit within 30 days after the expiry. Needless to say, the closure of the courts has created a difficulty in enforcing such promises of sale agreements and therefore, legislation has been put in place in order to protect the parties.
Therefore, to take a practical example, if a promise of sale agreement were to expire on the 20th March 2020, and given the fact that the courts were closed on 16th March 2020, that promise would be suspended until the repeal of the court closure order. For reasons of practicality, if the court closure order is lifted on say 1st April 2020, that would mean that the new expiration date for the said promise of sale agreement would be the 25th April 2020 – ie the 4 days calculated between the 16th and the 20th March plus the 20 days for suspension calculated from the lifting of the closure order.
Suspension of Legal and Judicial Times
Another Legal Notice, 61 of 2020, entitled ‘Epidemics and Infectious Disease (Suspension of Legal and Judicial Times) Order, 2020’ came into force on the 16th of March 2020 in which the legal and judicial times were suspended. However, just two days later, it was amended in terms of Legal Notice 84 of 2020.
Legal time-limits are imposed by law in order to create legal certainty by stipulating that certain claims or rights to appeal to the courts are time-barred if a person does not take legal action before a stipulated time period. The closure of the courts and the registry obviously creates a difficulty in that citizens are effectively being barred from exercising their legal rights through no fault of their own and therefore, the law has stepped in order to protect them.
In this regard, the law established that when the Superintendent of Public Health orders the closure of all courts or of any court for the purpose of guarding against infectious disease, this order shall also suspend the running of any legal and judicial times and of any other time limits including peremptory periods applicable to proceedings or other procedures before the courts. Given the fact that the closure order has been published, the suspension has come into effect as of 16th March 2020.
The suspension is to last until 7 days following its repeal, which is, in truth, a rather short period. The Legal Notice further explains that this suspension is taken to mean that if the last day of any legal or judicial time or other time limit expires during the period of closure of the courts, the running of legal time limits shall be suspended until 7 days after the day when the closure order is repealed. Yet, what happens if after extending the original expiration date due to the said suspension and additional period imposed by law, happens to fall on the weekend or a public holiday? In this regard, reference is made to article 2139 of the Civil Code which states that if the last day is a Saturday or a public holiday, then prescription take place upon the expiration of the next following day which is not to be a Saturday or a public holiday. It is expected that this Civil Code rule will apply in this scenario.
This suspension of legal time-limits has also been extended to prescription in criminal and civil matters. The inclusion of prescription in criminal matters might give rise to some interesting arguments and disputes regarding the rights of the accused, if this were to be challenged in Court in the near future. If the suspension period might prove to be pivotal and ultimately hamper the rights of the accused to plead prescription for any criminal charges brought against him or her, such a provision might come under the scrutiny and commentary of Criminal and Human Rights jurists, especially with regard to the promulgation of laws having retrospective effect which would somehow prejudice the accused. The suspension of legal terms in criminal matters may be regarded as a breach of the legal principle of the non-retroactivity of laws in criminal matters, but it remains to the courts to eventually decide on this issue once it is eventually raised.
These measures have been taken in terms of Article 27(c) of the Public Health Act – (Chapter 465 of the Laws of Malta) and may be varied or revoked by the Superintendent of Public Health in order to guard against or to control dangerous epidemics or infectious disease,
All in all, these precautionary measures have been necessary in order to ensure that the closure of the courts does not create injustices in preventing citizens from exercising their legal rights. Further measures will probably be necessary, depending on the period of closure of the courts.
The information provided does not constitute legal advice.
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