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Maltese law does not specifically provide for an interim measure, but an interim measure may result from a Court Order made at the beginning of or pending court proceedings upon request of the applicant to prevent the defendant from acting in a way that will prejudice the rights of the applicant in the course of legal proceedings.
There are other specific precautionary measures that are taken by any person, without the necessity of a previous judgement, to secure his rights by one or more precautionary acts, which shall be issued and carried into effect on the responsibility of the person suing out the act. The precautionary acts are:
(Applications filed in Court for the issue of such Warrants have to be sworn on oath).
The Interim and Precautionary measures are orders of the Court, thus the interested party must apply to the Court to obtain them.
In the case of Precautionary Warrants listed in point 1 above, if the measure concerns a claim for an amount above Lm5000 the application has to be made to the Civil Court First Hall; if the claim is below the sum of Lm5000, the Courts of Magistrates in its civil jurisdiction has the competence to order the measure. Provided that the Court of Magistrates in its civil jurisdiction shall not issue any warrant of description, impediment of departure for the purpose of securing the enforcement of a judgement not being for the payment of an acknowledged amount.
In the case of a precautionary warrant, an application is made before the competent court hearing the case. A party to an arbitration agreement may also demand the issue of a precautionary act.
In the application, which must be made on a standard form obtained from the registry of the court, the applicant must give an account of all the material facts of which the court should be made aware. In the case of any other application requesting Interim Measures when there is a court case pending, there is no need to use a particular standard form.
In all cases such applications must be signed by a lawyer. The application is then served on the other party who may contest it accordingly. Such applications may be upheld or rejected without being appointed for hearing before the Court, but if they are, the parties are represented by lawyers who will make the submissions on their clients’ behalf.
There are specific court fees for issuing an application for an order which depend also on the number of persons on whom it is served. The Court fees for filing the application are initially borne by the applicant but the defendant may ultimately be ordered to pay the costs.
The Court will use various criteria before granting/rejecting an application for the issue of a precautionary/interim measure. It will check among other things whether:
With regard to specific precautionary measures:
Where however the salary, wage benefit, pension or allowance mentioned in the preceding paragraph exceed Lm300 per month, the court may on application by any creditor allow the issue of a garnishee order on that part in excess of that amount, unless the debtor upon application shows to the satisfaction of the court that he needs such excess or part thereof for his maintenance or the maintenance of his family.
Nevertheless where the creditor is the spouse, or a minor or an incapacitated child, or an ascendant of the debtor, the Court may order that a specified portion of the salary or allowance be paid directly to the creditor.
If the debtor fails to comply with such measures action may be taken against him for contempt of court the outcome of which may be imprisonment or payment of a fine, or both.
Precautionary warrants remain vaild until they are rescinded by the Court.
During the pendency of the Court proceedings, the defendant who is directly affected by an interim/precautionary measure may apply to the court which issued the interim/precautionary measure at any time to have the order varied or discharged. The grounds on which such application may be made include failure to satisfy one of the conditions for the grant of the Order (such as improper service of the application), a material change in circumstances which removes the justification for the order or delay by the claimant in pursuing the claim.
A precautionary act issued on the demand of a party to an arbitration agreement may be rescinded if the party against whom it is issued makes a deposit or gives a security to secure the rights or claims stated in the act, if the applicant fails to bring forward his claim within 20 days from the issue of the precautionary act, on the expiration of the duration of the particular act , for just cause on the application of the debtor as the court may deem proper in the circumstances.
Last update: 11-04-2006