Certain court procedures and practices that are “relics” of a time when the courts used to handle a lower number of cases should be changed, Chamber of Advocates president Louis de Gabriele told The Malta Independent on Sunday, explaining that this could improve efficiency.

In an interview with this newsroom, he also highlighted the need for more resources in the courts and gave an update on the Bill to regulate lawyers. He was asked what he would change in terms of the operation of the law courts, to which he mentioned certain working practices.

"We are operating in an environment with laws of procedure and working practices which were originally intended to handle a certain limited volume of cases. Today we have significantly increased that volume," he said, adding that the resources available, in terms of human resources, physical resources, and also in terms of procedures and working practices, will not cope with the volume of cases today.

“Why has there been such a significant increase in the volume of court work?” he asked rhetorically. He said that a significant amount of new legislation came into force since Malta joined the EU in 2004.

There has been an incredible evolution of legislation, de Gabriele said.

That brings with it more disputes and therefore more references to the courts. In the meantime however, he said that "our laws of procedure, our working practices have not been updated accordingly".

Over the past 30-35 years, there has been an accumulation of "potentially individually small things, but cumulatively (they) have a significant impact on the way that the court works".

The point is, he said, that the volume of cases in court has completely outgrown the infrastructure, "which was never intended to cope with this kind of volume and that overall this is placing the whole infrastructure under severe stress".

One example of a system he would change is the court notification system. He described it as being outdated.

"A court notification system can be digitalised. I'm sure that as part of the digitalisation process, this is the first thing that we'll be working on.” He said that a form of certified system is needed, where each individual can receive notifications and it can be proved that the person has been notified.

He said that the current notification system, which utilises registered mail, among other things, is "archaic".

"We need to digitalise the process, or have, for example, a private way of notification. So if I want to notify a party, why do I need to go through the court system? If I can bring evidence that I have handed over a court document, a summons, to someone for example, why do I need to go through the infrastructure of the court? What's the purpose of a notification… that I can show that I have made you aware that there is a case against you."

Another working practice he wants changed is the use of sworn applications.

"It entails people going to the Court Registry in order to take an oath on a document, an application, and without that oath you cannot start processing that application. Now this creates a lot of traffic heading towards the registry, and the registry is inundated with all of these coming in at the same time." The lawyer suggests that one doesn't need to take the oath on an application and said that in certain instances one already doesn’t. "For example, a constitutional case is not a sworn application, it's just an application. Under company law, there does not need to be a sworn application, it's simply an application. I would use that system.”

“If we really want to stick to there being the oath, then at the first hearing the plaintiff would be able to take the oath administered by the judge. That would avoid a lot of people going to the registry simply to take the oath. Rather than creating traffic, it would distribute all of that among all of the halls in the court," as the oath would be held in the first sitting.

Such things, he said, are relics of a court that had lower volumes.

Another such example is what he calls “case management hearings”, which he described as not including anything substantive about the case being heard in court. He gave an example of such a hearing, when a judge would ask for more information and one would go to court simply to say if there is or isn't information for instance. “This can be avoided.”

He said such hearings could instead be heard by the court clerks or instead one could just correspond with the deputy registrar.

Another issue he mentioned was court resources.

The Justice Minister recently announced that two new judges and two new magistrates will be appointed. Asked if this is enough or if he had different resources in mind, the Chamber president said that “it is useless having the judges in place unless you are going to give them the resources that they need".

A judge cannot take office, even though they would be appointed, unless they have a deputy registrar and other staff who form the team for a court hall to be able to operate, he added.

"So no, I'm not just speaking of judges or magistrates, I'm also speaking about the resources required to support the operation of a hall in court. Now add to that the Court Registry. One of the major bottlenecks we have today is the Court Registry. I know that they're doing their utmost – we are in continuous contact with the registry. The problem is that they are not attracting enough people to take up the roles that they are offering and they are not attracting the right people. So it’s both a matter of number and a matter of quality."

Something needs to be done, more attractive conditions of employment are needed, he said. "I know that they've just come up with a new collective agreement. I don't think it is enough. I think that for anybody to work in court and be able to work at the intensity with which a hall in a court works, you need to offer better conditions of employment, otherwise it's not going to be attractive enough."

He said that there is also a “significant problem” in the registry. "It's a bottleneck. You cannot keep on increasing the number of judges and not increasing the support staff that make everything work. Judges are not islands; they need the infrastructure within the whole courthouse to be able to work properly and efficiently."

He was asked about the space in the court house, an issue which was recently brought up.

"I think there's enough space in the courthouse today, but you need to deploy it more efficiently."

As an example, he mentioned moving the administration and back office out of the court building to elsewhere in Valletta. "You don't need the administration offices to be on the fourth floor. The minute you liberate that space, you've liberated the fourth floor (…) you can easily give access for another six or seven court halls.” He mentioned the registrar and registry possibly staying in the court house.

"I would first try to use the space available in court by maximising the capacity. Then let's discuss whether there are some courts that may not have to be in the court house."

Having a separate court building, especially if it is outside of Valletta, will create hardships for lawyers, he said, but indicated there wouldn’t be a problem if another building in the vicinity of the current court house is used. "But you need to have a situation where all judges give a time slot for a case," which would help lawyers with organisation.

The Chamber president said that a permanent working group should be set up to come up with a medium- to long-term plan to solve issues for efficiency, to ensure that the court is "not looking 30 years back, but 10 years forward". Such a group would be composed of members of the judiciary, representatives from the justice ministry, the court administration and the Chamber of Advocates.

Asked about court delays, he said that they are the same issues as he mentioned regarding inefficiencies. “Those inefficiencies create delays. I think there has been an improvement."
"The fact that judges are much more sensitized to the issue of delays is already a big step forward. I became a lawyer in 1988. In the past, you'd go to a judge and ask for a case to be adjourned and there would be no questions asked, nobody would bat an eyelid. Today that doesn't happen. You would really need an adjournment to even dare ask for it. So that disciplines lawyers. Lawyers have to discipline their clients. That is a culture shift."

"We used to be very critical of appeals. We had a waiting list of between four-and-a-half years to five. With changes, which the Chamber was a promoter of, removing the sitting for an appeal unless the court insists that it takes place, has streamlined appeals that can now be decided in nine months rather than waiting for five years."

"We don't need oral hearings for everything. You can articulate and express an argument in written form in as effective a way as you could orally. All of this means we need to organise ourselves differently as a profession, as if one has more written pleadings, then more time is needed, more preparation. It's a culture shift."

He was also asked for his opinion about the compilation of evidence process in criminal cases. He stressed that he is not a criminal lawyer and doesn't work in that field, and is not too aware of issues there, but did say that the system was adopted from the British system. "I'm pretty sure, given that the compilation of evidence works in a way where you are compiling the evidence, which evidence then has to be given again at trial... I think we can do away with that.”

"The compilation of evidence has one basic principle behind it… whether there is enough evidence to prosecute somebody before a court of law. It's an investigative process. I would delegate that investigative process to the Attorney General, who will then have to prosecute."

"You don't need to go to a magistrate to tell you that there is or there isn't enough evidence. You can determine, as a lawyer, whether there is enough evidence to prosecute someone." He said that checks and balances would be required in such a process, such as the ability to challenge the decision of whether to prosecute or not and that such a decision is not taken by one person, but would rather require an escalation process within the AG's office where there would be a consensus among a number of officers within the AG's office.

"You either have evidence and you arraign somebody or you don't. And that's a judgement call that a responsible Attorney General should be able to make."

Moving towards prosecutions even at that stage involving the AG, no longer being the police, is already a step in that direction, he said. "The AG is involved from day one of a process today. So do you need the compilation of evidence and then with that evidence go to trial and have to produce that evidence again?"

“My take on this, again with the caveat that I am not a criminal lawyer, would be that with the right checks and balances I would do away with the compilation of evidence completely."

He was asked whether there should be a change in the mechanism as to how magistrates and judges recuse themselves from a case, given the recent situation surrounding Magistrate Nadine Lia. He said that he will not comment on the specific case as an appeal has been filed.

Asked to speak in general about the system, he said that in Malta the law is clear on these matters and all that courts ought to do is to apply the law.

"I remember times in court when a judge wouldn't recuse himself even if his son or daughter would be making a case in front of that judge. The law, however, changed over time, and that is today no longer possible. There's a section in our code of procedure which tells you when a judge can or cannot recuse themselves – and it is clear that a judge or magistrate may only recuse himself or herself in the instances mentioned in the law and for no other reason. I would apply the law, whatever the result is of applying that law. Judges aren't there to legislate; judges are there to apply the laws enacted by Parliament, whatever the outcome of that may be."

He said the law sets out the criteria by which a member of the judiciary can be recused.  “We may well need to look at those provisions again to see whether we need to improve them, but until such time, the law is the law and ought to be applied.”

Turning to the Bill to regulate the legal profession, he said that the Chamber had proposed the setting up of a joint working committee, between the Chamber and the Ministry for Justice. “I've been advised that the minister has appointed a number of people as the ministry’s representatives for this working committee. There's a draft of a Bill, which now the Working Committee will start going through, section by section." He said that nobody ever identified to the Chamber what were the issues government had with its proposals. Through this working group, he said they will be able to identify what issues are unsuitable and why and try to find a solution.