Giljottina Proceedings

Maltese civil procedural law enables summary proceedings which allow for the swift judgment of applications filed before the Courts of Malta. Such proceedings are commonly referred to as “kawża bil-giljottina” which reflects the efficient prospect such proceedings may yield and this is by “cutting” through the usual trial process. Giljottina proceedings are an exceptional remedy that allow a court to dispense of the full hearing of a case and immediately render judgment for the plaintiff, but only in limited circumstances and under strict conditions

When can Giljottina Proceedings be used?

Article 167 of the Code of Organisation and Civil Procedure (the “COCP”) exhaustively lists the scenarios where a plaintiff may request that the court pronounces judgment without a trial. This action may only be brought before courts of superior jurisdiction, and the demand shall be for one of the following:

• Recovery of a debt - the debt shall be certain, liquidated, and due (and not consisting of the performance of an act). This typically covers clearly ascertainable monetary claims that are already due (for example, an unpaid loan, invoice, or other contractual debt);

• Eviction from immovable property - the eviction of any person from an urban or rural tenement. This can be with or without an additional claim for any rent, ground rent, or other consideration due with the possibility of also claiming damages or compensation up to the date of surrender of the property. This allows landlords or owners to recover possession from occupants who have no title to remain in a more efficient manner, while also claiming rent arrears or related damages; and

• Eviction from vessels or aircraft - the removal of an operator, lessee, or other occupants (including crew or staff members) from a seagoing vessel or aircraft. This form of the giljottina is rarely used but was designed to cover niche maritime and aviation scenarios that merit such proceedings.

These are the only instances where the giljottina procedure is available. The most common utilization is for debt recovery. Creditors often resort to Article 167 to expedite debt collection when the amount owed is clear-cut and indisputable.

A typical scenario is when the debtor unequivocally owes a sum under a contract and no valid defence is apparent, the creditor may attempt to crystallise that debt through obtaining an executive title through a giljottina suit. The rationale is to avoid protracted litigation when the outcome appears obvious. However, as discussed below, strict procedural safeguards exist to prevent any abuse of this fast-track mechanism.

Procedure and Requirements

Since a giljottina case shortcuts the normal trial, the law imposes specific requirements to ensure fairness.

First and foremost, the plaintiff’s sworn application shall expressly pray for judgment without trial under Article 167 and shall include a declaration that in the plaintiff’s belief, there is no defence to the action. This declaration is a crucial formality; it signals to the Court that the plaintiff genuinely thinks the defendant has no valid answer to the claim. Failing to include this statement is fatal to the use of the procedure, as seen in case law.

In the First Hall’s judgment in the names Executive Security Services Ltd vs. Cavendish Hotels Ltd[1], the importance of the plaintiff including the statement that the opposite party has no legitimate defence to his knowledge was discussed. In this debt claim, the plaintiff invoked Article 167 to seek prompt judgment for unpaid services. However, at the hearing the Court noticed that the sworn application did not include the required declaration that the plaintiff believes there is no defence.

The plaintiff’s argument that the debt was never contested was deemed irrelevant, as silence by the defendant is not equivalent to an admission or proof of no defence. The Court emphasized the exceptional nature of Article 167, noting it deviates from the fundamental principle of hearing both sides, and thus its requirements shall be followed ad unguem.

The sworn application shall also contain an order summoning the defendant to appear in court on a specified day and time. This relatively short period is meant to ensure that the matter is dealt with expeditiously.

At the hearing, the defendant has a chance to impugn the proceedings. This can be done through a preliminary objection that the special summary procedure is irregular or inapplicable to that case. For instance, the defendant might argue that the claim doesn’t actually meet the criteria of Article 167 or point out that the plaintiff failed to follow a required step.

If the court upholds such an objection, or if any mandatory requirement is lacking, the case will stop being summary and will proceed in the ordinary course of trial. Maltese courts have stressed that they shall scrupulously ensure all legal requisites are met before dispensing with a hearing, given that the right to be heard is not to be lightly set aside.

Should the defendant fail to appear on the appointed day, or appears but does not contest the use of Article 167 and fails to demonstrate any prima facie defence, then the court will forthwith give judgment. On the other hand, if the defendant does disclose a prima facie defence or other sufficient facts that merit a full contestation, the court will grant leave to defend and the case will proceed to be tried normally, just like any ordinary lawsuit.

Article 167 is also useful in commercial debt scenarios as seen in the Paul Falzon vs. Il-Bastiment ‘Sky’ (IMO No. 8597011) case. A representative of an international seafarers’ union sued on behalf of crew members for unpaid wages after a ship’s owners abandoned the vessel and failed to pay the crew. The claim was for a certain, liquidated, and due debt which falls squarely within Article 167’s scope.

The ship’s owners never appeared in the proceedings and the court noted that the claim met all the criteria and that no defence was forthcoming; it therefore accepted the use of special summary proceedings under Article 167 and promptly awarded the crew their due wages. This case highlights how creditors, even in maritime contexts, can leverage the giljottina mechanism to obtain fast judgments for debt recovery when the debtor is absent or has no arguable defence.

Therefore, Giljottina proceedings are appreciated as a powerful tool for expedient justice in clear-cut cases of debt and unlawful occupation. They allow creditors and property owners to obtain enforceable judgments in a more efficient manner.

[1]  First Hall Civil Court, Mt Justice Christian Falzon Scerri, 21 June 2021.

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Author: Dr Neil Gauci