'Contumacia' : is it justified particularly in the light of the fair hearing requirements?

Abstract

This thesis analyses the effects of contumacia under Maltese procedural law in the light of the conventional and constitutional fair hearing requirements. Whilst assuming familiarity on the part of the reader with the basic mechanisms of contumacia under Maltese law, the author compares Maltese contumacia with English default judgments and with Italian contumacia, finding that English common law adopts a presumption of admission on the part of the defendant who fails to contest the claims filed against him whilst Italian law has in common with Maltese law the principle that the defendant is deemed to be in tacit contestation. Unlike Maltese law however both the English and Italian systems are found to include mechanisms that give the defaulting defendant the right to contest at a later stage even though his default may have been the result of negligence. Chapter Two examines the decisions of the ECHR regarding Article 6(1) of the European Convention and finds that the requirements relevant to contumacia also obtain under Article 39 of the Maltese Constitution, including the principles of natural justice, of equality of arms and of proportionality. It has also repeatedly stated that this article imposes no obligation for a State to provide an appellate hearing, but in the event that an appeal hearing is granted by the courts then Article 6(1) must be respected. Finally the author argues that the punitive element in contumacia does not justify the gravity of the silence imposed upon the defaulting defendant and that the obtaining system of conducting one sided hearings for the plaintiff to prove his claim without cross-examination or contestation of any sort constitutes a breach of 4 the right to fair hearing. A comparison is also made with other mechanisms regulating