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Last update: 24-06-2005
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Legal aid - Malta

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TABLE OF CONTENTS

1. What are the costs of a trial and who should normally pay them? 1.
2. What is legal aid? 2.
3. Can I benefit from legal aid? 3.
4. Can legal aid be obtained for all disputes? 4.
5. Is there a specific procedure for emergencies? 5.
6. Where can I obtain an application form for legal aid? 6.
7. Which documents should I attach to my request for legal aid? 7.
8. Where should I register my request for legal aid? 8.
9. How will I be informed of whether or not I am eligible for legal aid? 9.
10. If I qualify for legal aid, what should I do? 10.
11. If I qualify for legal aid, who will choose my lawyer? 11.
12. If I qualify for legal aid, will this cover all the costs of my trial? 12.
13. If I qualify for partial legal aid, who will pay the other costs? 13.
14. If I qualify for legal aid, will it cover any review I might make following the trial? 14.
15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)? 15.
16. If I do not qualify for legal aid, can I appeal against this decision? 16.

 

1. What are the costs of a trial and who should normally pay them?

Fees for judicial proceedings are fixed by law. There are fees which have to be paid on the institution of court proceedings, and others when court proceedings come to an end. These generally come in fixed tariffs, the tariff would include the court services. Court services would cover the costs relating to the filing of warrants for the examination of witnesses, the recording fees, transcript and copies, the service of a judicial assistant, the transmission of the records of the cause, taxed bill of costs, and a copy of the judgement. During the course of the trial, separate fees would have to be paid for notification of judicial acts, and fees due to experts or referees appointed by the Court. Subject to some exceptions, the fees due to lawyers are fixed by the law and come as a percentage on the amount subject to the dispute, the parties however may agree otherwise in writing.

The above mentioned fees do not include extra judicial fees which, however, if contests may be taxed by the Court.

As to who is to pay for the costs, once judgement is delivered, the Court will identify the party who is to bear the costs. As a general rule, the party who loses the cases is also bound to pay the costs, however, the Court could vary its judgment from case to case.

2. What is legal aid?

Legal aid is a form of assistance given by the state to persons who on demand, and following an assessment of their claim and their financial situation by the Advocate for Legal Aid, are declared as not having the means to access the courts of justice. Legal aid is granted to persons who wish to institute proceedings against a third party or who wish to defend themselves against claims brought against them by a third party.

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3. Can I benefit from legal aid?

Legal aid is only granted to persons after having satisfied three criteria namely the merits, the means and the procedure test.

Merits

For an applicant to qualify under the merits criteria, the Advocate for Legal Aid on examining the nature of the case must conclude that the applicant has reasonable grounds for taking or defending proceedings before the courts, i.e. that the applicant has in his favour a probabilis causa litigandi. Each case is examined on its own merits. The assessment carried out by the Advocate for Legal Aid would include examining the substance of the case, the possible outcome of the proceedings, and the prospect of success.

Means

For an applicant to qualify under the means criteria, he must not possess property of any sort the net value whereof does not exceed three thousand Malta Liri, and the applicant’s income should not, for the period of twelve months prior to the demand for the benefit of legal aid, exceed the national minimum wage for persons above the age of 18.

Excluded from the assessment are the everyday household items that are considered necessary for the use by the applicant and his family, as well as the principal residence of the applicant or any property (both movable or immovable) which forms the subject matter of court proceedings, even though such property is not the subject matter of the proceedings in respect of which legal aid is being applied for.

Procedure

The applicant must take an oath confirming his/her means, and that he/she has a probabilis causa litigandi.

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If the applicant satisfies the criteria, a notice of such a request is sent to the party against whom proceedings are to be instituted, who has 4 days to object to the request. The objection should take the form of a note filed in the Registry of the Civil Court . If no objection is raised, the Advocate for Legal Aid will pass on to decide on the application leading to the admissibility or otherwise of the request. If an objection is raised, the Advocate for Legal Aid examines the objection, including the hearing of evidence if necessary, and forwards a report regarding whether the request should be accepted or not.

4. Can legal aid be obtained for all disputes?

Legal aid is granted for basically any civil dispute. However in case of an action relating to the correction or cancellation of any registration, or for the registration of any act of birth, marriage or death, no means test is required. In the circumstances where a request for a correction is to be made to the Court of Review of Notarial Acts, no formal application is required, and the Advocate for Legal Aid shall file the relative application before this Court.

5. Is there a specific procedure for emergencies?

The law does cater for urgent situations (for example the issue of a warrant) by permitting the Advocate for Legal aid to obtain provisional authorisation from the competent Court to file specific judicial acts on behalf of a person claiming legal aid, followed by an assessment as to the means, merits and procedure identified under question 3.

Should the competent Court subsequently exclude the benefit of legal aid, the judicial acts filed by the Advocate for Legal Aid are not rendered null, however any future benefit shall be terminated and the Court may order that any expenses incurred during the provisional admission shall be paid by the applicant.

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6. Where can I obtain an application form for legal aid?

No pre-printed application forms are used. The request for legal aid may be made either by filing an application before the Civil Court or even orally to the Advocate for Legal Aid.

7. Which documents should I attach to my request for legal aid?

As already stated above, each case is determined on its own merits. It follows that the documents attached to the request should reflect the subject matter of the claim. For example, if the claim relates to an annulment of marriage, a copy of the marriage certificate should be attached. Any documents which the Advocate for Legal Aid might need in order to reach an assessment for admissibility or otherwise, shall be produced to the Advocate for Legal Aid on demand.

8. Where should I register my request for legal aid?

As under answer number 6.

9. How will I be informed of whether or not I am eligible for legal aid?

Applicant is not formally notified with the outcome of the application, but he must consult the Registry of the Civil Court to be informed of the outcome.

10. If I qualify for legal aid, what should I do?

If applicant qualifies for legal aid, he must consult the Registry of Civil Courts. Applicant is informed, upon request, with the name of the lawyer who has been assigned to assist him during the proceedings. Applicant is to contact the assigned lawyer for assistance.

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11. If I qualify for legal aid, who will choose my lawyer?

Once the request is approved, the applicant shall be assigned a lawyer whose name appears on a list at the disposal of the Court and whose turn it is according to the rota. If the applicant, for a good cause, wishes to substitute the advocate with another advocate from the rota, he may file a request before the Civil Court.

12. If I qualify for legal aid, will this cover all the costs of my trial?

Legal aid only covers the costs incurred by the applicant. The applicant would thus be exempt from the payment of all his/her fees and from giving security for costs.

If the applicant succeeds in the action, he shall, out of the amount obtained or out of the proceeds of the judicial sale by auction of the movable or immovable property effected in pursuance of the judgment, pay the fees due to the registry, advocate, legal procurator and to the curators and referees (if any), saving his right of reimbursement as against the party who may have been ordered to pay such fees.

13. If I qualify for partial legal aid, who will pay the other costs?

In Malta, the concept of partial legal aid does not apply i.e. applicant is either given legal aid or refused legal aid. If the party proceeding with the benefit for legal aid is cast with the costs of the case, the Registrar of the Civil Cour cannot claim from the successful party the fees due to the Registry.

14. If I qualify for legal aid, will it cover any review I might make following the trial?

If applicant qualifies for legal aid, he/she will be entitled to such assistance at all levels, including assistance before the appellate courts.

15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)?

If it is proved to the Court that

  • at the time the benefit for legal aid was granted applicant knowingly possessed capital and income exceeding that established for the grant of legal aid, or
  • during the course of the trial, applicant knowingly had an increase in his financial circumstances in excess of that established for the grant of legal aid and failed to report same to the Civil Court ,

the Court may condemn the applicant with contempt of court. Perjury proceedings may also be instituted against the applicant.

In both cases applicant shall be liable personally for all costs of the proceedings to which he would have been liable if the benefit of legal aid had not been granted to him.

16. If I do not qualify for legal aid, can I appeal against this decision?

There is no appeal from a decision refusing the granting of legal aid. However if the report drawn up by the Advocate for Legal Aid is not in favour of the applicant, the Civil Court shall examine the report, and shall give the parties the opportunity to make their submissions before it decides on whether to accept the adverse report or to reject the report and admit the demand.

Further information

« Legal aid - General information | Malta - General information »

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Last update: 24-06-2005

 
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