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Last update: 11-04-2006
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Interim and precautionary measures - Malta

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TABLE OF CONTENTS

1. What are the different types of measures? 1.
2. What are the conditions under which such measures may be issued? 2.
2.1. The procedure 2.1.
2.2. The substantive conditions 2.2.
3. Object and nature of such measures? 3.
3.1. What types of assets can be subject to such measures? 3.1.
3.2. What are the effects of such measures? 3.2.
3.3. What is the validity of such measures? 3.3.
4. Is there a possibility of appeal against the measure? 4.

 

1. What are the different types of measures?

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:

  • Warrant of Description (issued to secure a right over movable things whereby the things are described in detail stating the number and quality thereof) ;
  • Warrant of Seizure (issued to seize from the possession of the debtor, property equal in value to the sum claimed by the creditor) ;
  • Garnishee Order (issued to attach in the hands of a third party moneys or movable property claimed to be due or belonging to a debtor) ;
  • Warrant of Impediment of Departure (issued to stop departure of a ship or vessel to secure a debt or a claim which could be frustrated by the departure of the ship or vessel) ;
  • Warrant of Prohibitory Injunction (issued to restrain a person from commencing or continuing the erection of any building or work whatsoever, from demolishing or renovating any building or work; from entering any premises or place; from doing any thing whatsoever which might be prejudicial to the person suing out the warrant; from taking a minor outside Malta; or to secure a debt or claim amounting to not less than Lm4,000).

(Applications filed in Court for the issue of such Warrants have to be sworn on oath).

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2. What are the conditions under which such measures may be issued?

2.1. The procedure

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.

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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.

2.2. The substantive conditions

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:

  • the application is frivolous and vexatious
  • any one of the conditions requested by law for the issue of the precautionary act does not in fact subsist
  • other adequate security is available to satisfy the claim of the person at whose request a precautionary/interim measure is sought to be obtained
  • if it is shown that the claim is not prima facie justified or is excessive
  • -if security provided is deemed by the Court to be sufficient

3. Object and nature of such measures?

3.1. What types of assets can be subject to such measures?

With regard to specific precautionary measures:

  • in the case of Warrant of Description the object is any movable property which is sought to be described in security of the creditor’s rights.
  • in the case of the Warrant of Seizure the assets seized must be a movable property (cars, jewellery, merchandise etc).
  • in the case of a Garnishee Order money or any other movable property in the hands of third parties may be seized. It shall not be lawful however to issue a garnishee Order upon any salary or wages (including bonuses, allowances, overtime and other emoluments); any benefit, pension, allowance or assistance as provided in the Social Security Act (Chapter 318 of the Laws of Malta) or other allowance of any person pensioned by the Government; any charitable grant made by the Government; any bequest expressly made for the purpose of maintenance, if the debtor has not other means of subsistence and the debt is not due in respect of maintenance; any sum due for maintenance whether awarded by the Court or by public deed if the debt itself is not due in respect of maintenance; upon any sum due by any civil or military department of the public service for the price of works or supplies.

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.

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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.

  • In the case of the Warrant of Impediment of Departure, this is only applicable to stop the departure of a ship or vessel.
  • In the case of a Warrant of Prohibitory Injunction, this is wider in range because it can not only restrain a person from commencing or continuing the erection of any building or work whatsoever, or from demolishing or renovating any building or work, but it can also restrain a person from entering any premises or place, from doing any thing whatsoever which might be prejudicial to the person suing out the warrant including restraining a person from taking a minor outside Malta or in the case of personal separation restraining the other spouse from selling, alienating, transferring any shareholding in any commercial partnership etc. A warrant of prohibitory injunction may also be issued to secure a claim or debt amounting to not less than Lm4,000.
3.2. What are the effects of such measures?

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.

3.3. What is the validity of such measures?

Precautionary warrants remain vaild until they are rescinded by the Court.

4. Is there a possibility of appeal against the measure?

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.

Further information

« Interim and precautionary measures - General information | Malta - General information »

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Last update: 11-04-2006

 
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