The use and abuse of precautionary warrants

Abstract

The use of the mechanism of a precautionary warrant falls under the ambit of Civil Law, whereby the COCP attempts to regulate the use of this mechanism. However, in spite of the law being so extensive and well-detailed as regards precautionary acts, so as to safeguard the rights of the creditors and potential debtors, it may be seen that the law still falls short in order to avoid the misuse and abuse of these precautionary measures. Therefore, this paper attempts to delve into the use and potential abuse of precautionary warrants under Maltese law. Initially, the author first concisely disintegrates the concept of precautionary warrants, in order to extrapolate the raison d'être behind these precautionary acts. This is pivotal as it is able to determine whether the use of such warrants do, in actual fact, protect the rights of the individual or whether the use of such warrants, places the individual in a more precarious position. Di piu, this is depicted through jurisprudence, whereby the Courts by referring to the black letter law and spirit of the legislation build onto these concepts. However, no law is perfect, and despite all these efforts, there are still certain issues which arise. The author here goes into these shortcomings and limitations, particularly the ease at which a precautionary warrant is granted, the lack of conformity to the concept of fair trial by the adjudicating Court, the lack in consistency in regulating the abuse when precautionary warrant which are filed frivolously and vexatiously. In the concluding remarks, the author finally delves into the discussion whether the objective of this mechanism is upkept, or whether it needs to be revised, and suggesting possible remedies.