Failure to file the statement of defence

Abstract

It is the intention of this brief paper to outline the position of the defendant who is in default (‘kontumacja’) in a law-suit under the Maltese legal system. Besides highlighting the factors which constitute the default of the defendant, and reviewing the sanctions which accompany the institute of ‘kontumacja’, this paper also gives a historical background to the origin, purpose and use of the statement of defense as a means of contestation of the cause of the plaintiff. The remedies which, at law, are allowed in relation to the defendant who is in default have also been considered. Moreover, a generous part of this paper has been devoted to local jurisprudence in an attempt, through our Courts’ interpretations, to throw light on the question of justifiable default. Finally, this brief study also considers the issue of whether the defendant who is in default may benefit from the right to a fair hearing in terms of European Convention on Human Rights and Fundamental Freedoms.