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Both Dr Anna Mallia and Dr Harry Vassallo, who are members of the same legal profession to which I have the honour to belong, passed interesting comments in their last Sunday’s contributions on Bill 27.
Both seem to be disenchanted with what to me are the obvious advantages this Bill would grant to honest people in today’s daily life. They have established the following points of objection to which I would humbly reply.
Firstly, they both see the possibility of abuse by the party filing the judicial letter or his lawyer. In the executive title now being proposed it should be recognised to be a fast track ‘canonisation’ of the credit alleged therein. The abuse to which both contributors refer is possible in the proceedings as existing. Abuse is possible in any kind of procedure or action, be it a law suit, a provisional warrant, a judicial protest or indeed any extra judicial operation. But both contributors seem to base their arguments on the (to me at least, pessimistic) assumption first that most people (and their lawyers) in this country are not only tempted by abuse, but do resort to it. They also seem to think that most people (and their lawyers) are not on their guard for possible abuse. A judicial letter is an important intimation to which it is dangerous not to take account of. It is all laymen’s legal basic knowledge that one risks if one does not reply thereto. This controversy may be useful in alerting people to the peril of not taking notice. Also, and legal practitioners know this, the vast majority of our fellow lawyers are not all out and determined to practice abuse. My experience in the courts of law is not that pessimistic.
Therefore, what my friends fail to do is to discern between the exception and the rule. It should be accepted by all those who practice in court that, in the absolute majority of cases, the service of judicial acts is made in a correct and normal manner. There are, naturally, exceptions to this strong rule and these will always persist whatever we may write in the statute book. However, the Law provides remedies to attack the cases of irregular service.
All lawyers know that there is a right of action granted as a remedy against abuse of court procedures, and this right of action may not simply be one for damages. Ex abundantia, because of the novelty of this procedure, we have added a special action in order to curtail the possible abuses of this new “procedurally empowered” judicial letter.
Whilst some of Dr Vassallo’s comments were quite interesting, he did exercise unduly both his creative imagination and his inventiveness of metaphor. He was, however, restrictive in the posing of situations arising in the operation of the law.
He is labouring under the fallacy that only ‘rich’ people are owed money and that only ‘poor’ people are debtors. His somewhat naïve notions that only people in business would benefit from this measure, could be corrected by most practicing lawyers. Of course there is no set rule as to who is owed money and who owes it and malingerers in paying obligations. Again in my experience, the poor are not less inclined to honour their obligations. Some of the ‘rich’ might take more liberties with their civic and moral obligations. Debtors and creditors who are neither rich nor poor stand to derive some benefit from a more expedite way of bringing the machinery of Justice to perform.
What our friends fail to understand is that this system is an option in the hands of any creditor to which any debtor has the alternative option whether to reply or not, rebutting the claim within the ample time of thirty days. They also miss the point that the debtor is thus being given a longer period than the normal twenty days usually granted in any lawsuit. Not only that, but it is also to the debtor’s advantage to save on legal costs, be they court registry expenses or professional fees, in deciding to accept the claim, as these would be far less than those usually ‘taxed’ in any law suit. These are significant advantages when a debtor accepts in Court his creditor’s claim, as the court fees add up to much more.
Allow me to repeat once again, should the debtor decide that he has a case and that he should rebut the claim and reply, the proceedings are stopped. The ball is then in the creditor’s court. He has to decide whether to proceed further with the filing of a lawsuit or refrain on the basis of the arguments brought forward by the supposed debtor in his defence.
This new procedure will in turn relieve the Judiciary of valuable time as they will not need to write judgements declaring the obvious, when they can dedicate the time so saved to the decision of the more difficult cases. Dr Mallia has imagined a jihad against the Judiciary: nothing is farther from the truth. It would be foolish and counterproductive, as recent experience has shown, to blame the bench or the lawyers for the difficulties encountered in the proper administration of justice.
It is better to look at which are the real problems in the day to day practice so as to seek new ways of improving and complementing those already existing. Reform does not always go down well at first, especially with those who are set in their ways and are not charged with the responsibility of improving the whole system.
In the long run, the present reforms will be seen as having been not only necessary but urgently so. Both contributors took umbrage also because traffic accidents would be referred to mandatory arbitration.
A system which has been working correctly in numerous western democratic countries and which was introduced in our law in 1997 by the then Labour government for certain parts of the Condominium Act. The experience in the Arbitration Centre has been a positive one. Disputes there are generally dealt with in a far more speedier and less expensive manner. There, the parties are not summoned at the ‘appointed’ nine o’clock and left to wait until their case is called, but have a set time when the case is started, heard, concluded and adjourned for the award. It has taken most arbitral awards three months or less to be delivered. Today, because of these advantages, most countries have introduced arbitration. They have found it an excellent instrument with which their legal system can cope in dealing with the legal disputes engendered within their social milieu.
Government has thus decided to send disputes concerning traffic accidents, where there are no personal injuries involved and the amount of damage does not exceed five thousand Liri, directly to this Arbitration Centre. Government is confident that this Centre can deal better with them considering that our law courts have a heavy workload to handle.
This legal measure will not bring untold misery to thousands but will, hopefully, relieve them from the undue travails which they daily endure in any ordinary traffic law suit. It seems that some friends cannot realise that Government responsibility means lending an ear to the complaints about the useless pain and suffering that the common citizen has to suffer. It would be shameful on our part to leave the matter as it is. Now is the time to act.
Had both my friends had the time to follow Parliament’s debate, including my own humble contribution, and gone through the Bill, they might have arrived at different conclusions. What is sure is that this Bill does not intend to ensure Shylock’s pound of flesh, but to provide a system which will protect better the unfortunate Antonio who will not have to pay three times the debt incurred but the amount due with no useless loss in time and expense.
Our constituency is not limited to any class or interest. Expeditious procedures are just: prolonged proceedings are unjust and wasteful for everybody, except the scoundrel.
Carm Mifsud Bonnici is Parliamentary Secretary in the Ministry of Justice and Home Affairs
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