Enforcement of a foreign judgement in Malta

In its decision delivered on the 16 July 2019 in the names of ‘Vincenzo di Nunzio vs Interactive Services Limited ’, the First Hall of the Civil Court, presided over by Mr Justice Robert G. Mangion, considered, inter alia, the validity of an executive garnishee order issued by the Maltese courts pursuant to a judgement handed down by the court of Velletri in Italy.

In brief, the pertinent facts of the case at hand are as follows. On 9 April 2019, following an application tabled by the plaintiff for the issuance of an executive garnishee order in the amount of

€125,518.51 against the defendant company, the First Hall of the Civil Court (as otherwise presided) acceded to the plaintiff’s request, after having been provided with a copy of the judgement delivered by the court of Velletri in Italy, and also, the certificate issued in accordance with Article 53 of the Brussels I Recast Regulation (1215/2012) (“the Regulation”) – also known in legal circles as the Certificate of European Enforcement.

On 4 June 2019, the defendant company sought to revoke the executive garnishee order in question, stating inter alia in an application lodged to this effect that it had not been adequately notified of the judgement delivered by the Italian court, nor of the relative certificate issued thereto, prior to the execution of the said garnishee order. To this end, the presiding judge in the case under examination immediately remarked that the main issue to consider was whether the plaintiff was required to obtain a judicial declaration from the courts in Malta regarding the enforceability, or otherwise, of the issued certificate in the Maltese jurisdiction prior to issuing an executive garnishee order against the defendant company.

At the outset, the court confirmed the applicability of the provisions of the Regulation by citing Article 825A of the Chapter 12 of the Laws of Malta, which states the following:

“Where regulations of the European Union provide, with regard to the matters regulated under this title, in any manner different than in this title, the said regulations shall prevail, and the provisions of this Title shall only apply where they are not inconsistent with the provisions of such regulations or in matters not falling within the ambit of such regulations.”

The court also cited Recital 27 of the Regulation, which establishes the following:

“For the purposes of the free circulation of judgments, a judgment given in a Member State should be recognised and enforced in another Member State even if it is given against a person not domiciled in a Member State.”

Notwithstanding the aforementioned recital, however, the court thought it apt to elaborate on the point further, and clarified that this does not, and should not, imply that a judgement delivered in another member state ought to be enforceable in Malta without exception. To this end, the court, in its judgement, reproduced the contents of Recital 30 of the Regulation, in that:

“A party challenging the enforcement of a judgment given in another Member State should, to the extent possible and in accordance with the legal system of the Member State addressed, be able to invoke, in the same procedure, in addition to the grounds for refusal provided for in this Regulation, the grounds for refusal available under national law and within the time-limits laid down in that law.

The recognition of a judgment should, however, be refused only if one or more of the grounds for refusal provided for in this Regulation are present.”

For want of any further verbatim reproduction of the various provisions of the Regulation cited by the court in the course of its considerations, the salient points are being reproduced below:

Article 43 of the Regulation – for valid enforcement of a judgement delivered in another member state, both the judgement (and its translation where applicable) and certificate, shall be served upon the judgement debtor prior to the first enforcement measure taking place;

Article 45 of the Regulation – upon application of an interested party, recognition of a judgement shall be refused where inter alia the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him/her to arrange for his/her defence.

On the basis of the foregoing, the court reiterated that, prior to the enforcement in Malta of a judgement delivered in another member state: (1) the person against whom the judgement is being enforced must first be notified with the judgement itself and the relative certificate and (2) the person concerned must be given the opportunity to raise a defence against said enforcement.

In the present case, it transpired that the plaintiff had lodged an application for the issuance of an executive garnishee order without duly notifying the defendant company with the certificate, and also, without instituting summary proceedings before the Maltese Courts for enforcement of the foreign judgement in Malta. Hence, effectively, the defendant company had been deprived of its right to raise a defence against the enforcement of said judgement in Malta, and this in violation of the various provisions of the Regulation.

On this basis, the court proceeded to rule in favour of the defendant company, and ordered (1) the revocation of the original decree mandating the issuance of the executive garnishee order against the defendant company, and (2) the issuance of the relative counter-warrant to this effect.