A commentary on the limits of the right of appeal

Abstract

The finality of judgements and the certainty of their integrity are considered to be absolute to the parties in the action. The challenging of a judgement considered to be a res judicata, has always been considered to be an extraordinary action based on limited grounds. As there is no court of third instance such challenge seeks to have the final judgement reviewed with the hope that a more just and favourable result is obtained. This thesis proposes to identify the limits and the effectiveness of the right of appeal. Old institutes and also relatively new ones are sometimes invoked in order to remedy an injustice allegedly suffered due to circumstances which were unforeseen during the proceedings. In this respect the validity of actions based on the restitutio in integrum is analysed and compared with the action of retrial of causes. The right of appeal has to be also understood from its historical perspective. For this reason, the development of the Court of Appeal and its competences have been also discussed in this work. When a right of action is put in its historical context coupled with the successive amendments that it went through, the analysis of the action results in a better exposure of the spirit and the aim intended by the legislator. This leads us to a better elucidation of the discretionary powers of the Judiciary in particular the dynamics of the functioning of the Court of Appeal. International law also plays an important part in having our national courts abide by internationally recognised laws and standards. It is not uncommon that judgements of the highest courts of Malta were subsequently brought before other foreign courts for review. This had the effect of having our courts following suit in their judgements, sometimes even to the extent of having our legislators introduce or modify national laws in view of said international judgements.