Issue link: https://maltatoday.uberflip.com/i/899902
52 maltatoday SUNDAY 12 NOVEMBER 2017 A party of a lawsuit cannot be declared in default and therefore, not replying to the action, if the time period within which he has to reply has not run out. This was held in a judgement delivered by Mr Justice Robert Mangion in a family law dispute named AB -v- CB. The judgement was given on 31 October 2017. The plaintiffs asked to court to remove from the acts of the case the defendants' statement of defence and courter claim. The defendant objected arguing that the 20 days had not passed since he had been notified and therefore, could not be declared as in default. The defendant was notified on 2 August, meaning that he had until 22 August to reply. However, According to Article 158(13) of the Code of Organisation and Civil Procedure, if the Court appoints the case before the 20 days from notification, then the statement of defence must be presented before the first sitting. The plaintiff asked the court to remove the statement on a number of grounds, including that it was presented late. The court did not authorise that it be presented.The Court went through the timeline of the case. The plaintiff had registered the lawsuit on 2 June 2017 and the Court ordered that the first hearing would take place on 6 July 2017. The defendant was notified of the lawsuit and the appointment with the court after their son accepted the documents. On 6th July, the defendant appeared in court assisted by his lawyer, but had not as yet presented the statement of defence, since the 20 day period as provided in Article 158(1) of the Code of Organisation and Civil Procedure was still running. In the sitting the plaintiff's lawyer objected that the reply to the action be submitted. The defendant filed it the next day. The plaintiff instituted that Article 158(13) should apply and since the court appointed the sitting before the 20 days, then the statement of defence should have been presented before the first sitting. The Court was invited to decide whether the non-observance of Article 158(13) was tantamount to having the defendant declared as in default. Article 156(1)(b) binds the plaintiff in giving a notice to the defendant that he or she must reply within 20 days to the sworn application. Article 156(1)(d) gives the wording of the notice. This is not a mere formality, since if it is not done the sworn application is null and void. Article 158(1) and (13) read: "(1) The defendant shall file his sworn reply within twenty days from the date of service, unless he intends to admit the claim. (13) Notwithstanding the foregoing provisions of this article, where the court has appointed a day for the trial of the case before the time allowed for the filing of the sworn reply in accordance with this article, the defendant shall file the sworn reply not later than the time at which the case is first heard, and may also file them before the court at such hearing and serve a copy thereof on the plaintiff by delivering a copy to him or his advocate at that same hearing." A party is in default when he fails to present the reply to a claim made against him and therefore, fails to answer to the call of the court to the claim. Therefore, the law sanctions the default party by not allowing that party to present any evidence and to contest the witnesses. In a previous judgement Samchrome FZE -v- Danko Koncar et decided on 11 March 2016, the court held that the non-observance of the time frames imposed by the law cannot be ignored. These time frames cannot be extended nor suspended. The effects of defending the claim in time, has serious consequences. Because of this the interpretation of what causes a default must be restrictive, since if the court is satisfied that a party had no intention not to comply, the Court should justify the default and should allow that party to file the reply. Article 158(10) of the Code of Organisation and Civil Procedure allows the court to justify the default if the party can explain to the satisfaction of the court that he intended to file a defence of the case. Therefore, the law is making a distinction between a party which is careless and the other that intended to file a statement of defence, but failed to do so. Mr Justice Mangion held that a judgement Renato Aquilina et -v- Christopher Towsend et decided on 11 January 2016, is an authority of the subject of default, since it is well studied. The Court in fact quoted from this judgement. In that judgement the Court had shown that there is a difference between when a party is impeded from filing a defence and the other when the party is negligence. A court will find difficulty in cases in between these two extremities. The Court should give the benefit of the doubt to the party which intended to file the defence. In this particular case, the court acknowledged that the statement of defence was not filed in terms of Article 158(13), but was of the opinion that he should not be penalised for this. The defendant was present in court and had engaged a lawyer, who was also present, who in turn explained what had happened. The Court also noted that the sworn application had the notice that a statement of defence must be filed within 20 days. This was confusing. The Court then moved to decline the application and accepted the statement of defence of the defendant. Dr Malcolm Mifsud is partner Mifsud & Mifsud Advocates Opinion T he Planning Commission had decided to reject a planning application for the proposed demolition of an existing building and the subsequent construction of "a basement garage, ground floor retail, two overlying apartments and setback floor". The site is located on the border of Santa Venera. The Commission held that the proposed designs were objectionable, particularly so since the existing building was "worthy of preservation". Moreover, the proposed setback floor at roof level was in breach of policy since there were no committed adjacent roof structures on one or both sides of the site in question. Notwithstanding the Directorate's favourable recommendation, the Commission had concluded that the proposal went against policies SPED UO 2.2 and DC 15 P5. In reaction, applicant lodged an appeal against the Commission's decision before the Environment and Planning Review Tribunal, insisting that the permit should have been issued. In his submissions, applicant (now, appellant) argued that the internal part of the building was in a derelict state "as a result of damp, years of neglect and haphazard structural alterations to the extent that it could safely be said and shown that the internal part of the house was completely worthless from a conservation point of view". Moreover, appellant contended that the setback floor would not be visible from the street "when viewed from an eye level height of an average person who is 1.6m tall." According to appellant, there was a considerable number of buildings "which are of the same height or higher (even without a recess / setback) than the proposed development" in the immediate vicinity. Applicant went on to pin point that the Directorate had made no reference to "SPED UO 2.2 and DC 15 P5" in its recommendation to the Commission. Consequently, the Commission's eventual decision went beyond "that which is sought" (ultra petita). In addition, the Design Advisory Committee signalled its "no objection" to the proposal since "the existing building did not constitute any particular characteristics and architectural features and hence its demolition was acceptable according to the SPED Objectives". In reply, the case officer representing the Planning Authority pointed out that the Commission was not bound by the Directorate's technical recommendations, adding that were it not the case, "the Planning Commission would only turn out to be a rubber stamp". In this case, the Commission felt that the building was deemed to be of architectural and historical value and should be saved from demolition. In its assessment, the Tribunal, however, observed that the building was not in a good state of repair. Moreover, the Tribunal noted that the Commission's decision was not sufficiently motivated. The Commission relied on policies "SPED UO 2.2 and DC 15 P5" without further explanation. Consequently, the decision went against Article 72(1) of the Development Planning Act which states that for any refusal, "the Planning Board shall give specific reasons". Against this background, the Tribunal concluded that the case should be referred back to the Commission for assessment. Dr Robert Musumeci is an advocate and a perit • robert@ robertmusumeci.com Robert Musumeci Malcolm Mifsud Party cannot be in default if time period within which to reply has not elapsed Duty to give reasons The Commission relied on policies "SPED UO 2.2 and DC 15 P5" without further explanation