The nature of pleas in Maltese civil procedure : a jurisprudential analysis

Abstract

The term plea is not defined anywhere in our law yet legal authors and jurists broadly define it as any sort of defence that may be raised by the defendant in order to counter the plaintiff's demand. Generally, pleas serve as a means of safeguard for the defendant's rights when such rights are being attacked. When the defendant, by means of his pleas, alleges different facts from those alleged by the plaintiff, the former has to furnish proof of the existence and veracity of such different facts. A distinction must be drawn between pleas which merely serve to impugn the plaintiff's demand, on the one hand, and counterclaims, on the other. Pleas are further classifiable as either being dilatory or peremptory. A dilatory plea serves to postpone the action and must be generally raised in limine litis. On the other hand, peremptory pleas tend to destroy the action and cannot be reproposed These pleas can be raised at any stage of the proceedings, even at the appellate stage. The general rule is that the only admissible pleas are those raised by the parties. However there are some pleas which due to their nature must be raised by the Court ex officio. These pleas include those pleas which expressly according to the law can be raised by the Court of its own motion and pleas of public policy. On this issue, unfortunately, we have a number of discordant judgments, especially with respect to what constitutes a plea of public policy or not. The principle of jura novit Curia which literally means 'the Court knows the law', is entrenched in the Codes of Procedure of some continental systems. Our Courts have frequently maintained that it would not be equitable if the Court had to raise a legal argument and decide upon it itself. However, some judgments have recently hinted that the principle of substantive justice outweighs the private interests of the party and the Court cannot approve of the application of incorrect norms. In view of the conflicting judgments delivered by our Courts on some of the most vital aspects relating to the nature of pleas and the procedure applicable thereto, it is desirable that legislative intervention will help to clarify such important matters.