Product Liability 2009 - Arnold & Porter LLP

Muscat Azzopardi & Associates Malta
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
Prior to examining the merits of the case the Court can try
preliminary issues which are raised by the defendants such as for
example issues relating to prescription (time bar) and the lack of
jurisdiction of the particular tribunal. More often than not the
preliminary issues are procedural and the magistrate shall elect
whether to decide upon these issues prior to the hearing of the facts
or whether to postpone these decisions which shall be determined at
the end of the case together with the decision relating to the merits.
Preliminary issues are divided between issues which must be
brought by the defendant in the statement of defence and other
issues which may be brought at any stage in the proceedings.
4.7 What appeal options are available?
Appeals from decisions of the Consumer Claims Tribunal can be
filed within twenty days from the date of the decision by means of
an application to the Court of Appeal sitting in its inferior
jurisdiction.
The right to appeal shall always lie on any matter relating to the
jurisdiction of the Tribunal, on any question of prescription, and
where the tribunal has acted contrary to the rules of natural justice
and such action has prejudiced the rights of the appellant.
Furthermore there shall also be the right to appeal where the amount
of the claim in dispute exceeds €1,200.
The Consumer Affairs Act provides for a Consumer Affairs Appeals
Board. A trader upon whom an interim measure has been served, or
upon whom a compliance order has been made, may within fifteen
days of notification of the measure appeal from the said measure or
order by application before the Appeals Board.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
The Code of Organisation and Civil Procedure provides for the
Court to appoint one or more experts to assist in considering
technical issues.
Expert evidence can also be brought in by the parties in which case
the Code of Organisation and Civil Procedure states that where a
person is called as a witness, his opinion on any relevant matter on
which he is qualified to give expert evidence shall be admissible in
evidence only if, in the Court’s opinion, he is suitably qualified in
the relevant matter.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
A party wishing to present witnesses, factual or expert, will file the
request in the sworn declaration leading to the commencement of
the civil proceedings or in the statement of defence. It is common
practice to have witnesses presenting themselves in persona. All
persons giving witness can be examined and cross-examined in
Court. It is also common for experts to prepare reports in writing
that are in turn filed with the court as evidence.
ICLG TO: PRODUCT LIABILITY 2009
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4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
All documentary evidence, by law, is to be presented on the
commencement of court proceedings. Nonetheless the Court may
permit both the plaintiff and the defendant to present such other
documentary evidence which was not available or could not have
been obtained at the time of commencement of proceedings.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
The Arbitration Act, Chapter 387 of the Laws of Malta, encourages
and facilitates the settlement of disputes through arbitration and
establishes the Malta Arbitration Centre as a centre for domestic
arbitration and international commercial arbitration.
The Mediation Act, Chapter 474 of the Laws of Malta, came into
force towards the very end of December 2004 and established the
Malta Mediation Centre as a centre for domestic and international
mediation.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
The Law provides strict time limits in relation to the institution of
proceedings after which actions may not be commenced.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
Actions provided by the Civil Code as referred to in question 1.2
above are barred by the lapse of one year as from the day of the
contract in regard to immovables, while in regard to movables
actions are barred by the lapse of six months from the day on which
it was possible for the buyer to discover such defect.
Criminal actions in relation to proceedings relating to offences
concerning product safety are barred by the lapse of two years from
when the offence is committed.
The Consumer Affairs Act stipulates that actions for damages in
relation to defective products are to be barred by the lapse of three
years commencing from the day when the injured party becomes
aware or was in a position to reasonably become aware of the
damage, the defect and the identity of the producer or his
representative. Furthermore the possibility for such actions shall be
extinguished upon the expiration of ten years from the date on
which the producer put the actual product into circulation unless
legal proceedings against the producer had already been instituted.
Time limits are fixed by the Law and unless there are issues of
concealment or fraud the Court shall not vary the time limits.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
In situations wherein the buyer, for any reason beyond his control
including concealment or fraud, was unable to identify any existing
defects in the product purchased, such time limits shall not start
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