Maltese Procedural Law : cause or remedy for Court delays?

Abstract

To date court delays remain a constant theme of Maltese news and social media. Unfortunately, court delays have characterised Maltese litigation since the colonial period and despite many attempted reforms over the past two centuries, these have not succeeded to effectively counter the enduring perception that delay is an intrinsic part of Maltese court litigation. Throughout this thesis the relationship between Maltese procedural law and court delays will be studied because procedural law, understood expansively to include particular working practices and professional understandings, is deeply implicated both as a remedy and a cause of court delays. An initial study of Maltese legal history reveals that criminal and civil proceedings are generally characterised by a deep procedural divide. While the Criminal Court hearing during a trial by jury involves a single continuous hearing, trials before the FHCC involve fragmented and episodic hearings taking up a protracted period of time. These hearings are often adjourned, and adjournments are mostly decreed during the compilation of evidence stage. This is because at this stage, Maltese civil procedure reflects both adversarial and inquisitorial practices and influences. Since each procedural tradition attributes different roles to the legal actors involved, it is argued that the key legal actors in Malta do not always necessarily know the precise extent (and limitations) of their roles and responsibilities. Their response is to develop informal working practices and understandings which justify the granting of adjournments even if the written law appears to provide otherwise. After expanding on the above views, the same argument is advanced within a comparative context – focusing particularly on the Italian jurisdiction. It is concluded that only when all dimensions of procedural law are taken into account can reforms be truly effective. For this to happen, both the written rules and the unwritten practices as well as the attitudes and perceptions of the legal professionals involved in implementing these rules need to be reconciled. Therefore simply amending the written rules is unlikely to provide an effective remedy for court delays. The true remedy appears to require simultaneously amending redundant rules and changing the practices and perceptions of the ‘court community’ at large as well as accurately defining the roles of the legal actors. As will be shown in this thesis, such a change is not out of reach.