Failed to reply to a court application? Contumacia Explained.

The law and more specifically the Maltese Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) establishes a period of 20 days within which a party shall reply to a court application at first instance and 30 days with respect to appeals. If the respondent fails to file a reply within the period stipulated by the law when the cause is at first instance, in the manner required by the law, the respondent shall be deemed a contumacious party. Nonetheless, shortcomings of the applicant in breach of the provisions governing mode of service shall not prejudice the respondent.

What are the repercussions of being a contumacious party? Not replying to an application filed by a plaintiff shall mean no contestation to the demands made by said plaintiff and the court will have no other option but to decide the cause based on the evidence brought forward by the plaintiff exclusively.

Contumacia is not simply assigned to a party when there is the lack of a reply from one party. However, there shall be two requirements which shall be satisfied, these being:

1. Formal and substantial – The formal element refers to the defendant not filing a reply in the manner required by law. The substantial element refers to the defendant’s failure to appear before the court. Once there is the formal element, if the party shows up to proceedings, the court shall see whether there was justification to the party being declared contumacia. Therefore, the formal element is necessary; and
2. Valid summons – For a party to be declared contumacia, it shall have been notified in the manner required by law. This is because if the party was not duly notified, it is most probably the main reason for the failure to meet the deadline to file the reply. The Court in Sammut vs. Sammut[1] stated that if no proper notification is made to a party, that party shall not be prejudiced by being marked as contumacia and the court shall allow the party to defend itself.

Moreover, when a party is deemed contumacia, as stated in Waldonet Ltd. vs. Thake[2], contumacious parties shall not be considered as tacit admission to the allegations, requests, or arguments of the defendant.

However, the Court does allow the non-replying party to be re-instated in proceedings if a reasonable reason or a legitimate impediment to his default is raised by the defendant. Legitimate impediments shall refer to the causes which are independent of the will of the defendant. In the case in the names Cassar vs. Vassallo[3], the appellate court established norms which a court should use in justifying contumacia:

1. contumacia shall not be considered excusable if the reasons are voluntary;
2. contumacia cannot be justified if culpa subsists on the part of the defendant;
3. defendant must prove just cause to the satisfaction of the court which is equivalent to a legitimate impediment;
4. the legitimate impediment must be independent from the will of the defendant;
5. the impediment shall not be equivalent to easily preventable errors; and
6. the impediment to not file a reply shall amount to physical impossibility with the exception of moral circumstances in rare scenarios.

In the case Mifsud vs. Andolfo, the Inferior Court of Appeal stated that a party being informed of the date of a hearing, to constitute the substantial element, shall not be a reasonable or legitimate excuse.

When a party is deemed contumacious, he shall forfeit the right to:

• File pleas;
• Examine/cross-examine evidence produced by the plaintiff; and
• Produce evidence.

Nonetheless, a contumacious party would still have the following rights:

• Right to be present in hearings;

• Right to file an appeal;

• Right to request documents of proceedings; and

• Right to demand re-trial.

Author: Neil Gauci

For any other information or assistance please contact Dr Robert Tufigno.

[1] Simone Eve Collett Sammut vs. Adam Sammut, First Hall Civil Court, 17 March 2015.

[2] Waldonet Limited vs. David Thake, First Hall Civil Court, 3 April 2003.

[3] Vittorio Cassar vs. Carmelo Vassallo, Court of Appeal (Inferior), 30 October 1937.