In the realm of litigation proceedings, a formal hearing has traditionally been regarded as a vital element of procedural fairness. However, as of 2021, there has been a notable development in Malta. It has become possible for the court of appeal to proceed to judgment without a formal hearing, as outlined in Article 152(5) of Chapter 12 of the Laws of Malta.
This change arose through ACT No. XXXII of 2021, following which Article 152(5) now reads as follows:
‘It shall be lawful for the court, to proceed to judgment or, to order the hearing of a cause the written pleadings whereof have been closed, irrespective of its turn’
Essentially, the addition of the words “to proceed to judgment or” was made to enable appeal proceedings to occur without the necessity of a formal hearing.
It is important to acknowledge that some legal professionals I have spoken to express reservations about this amendment. Throughout our academic upbringing, we have been consistently taught the significance of the principle of audi alteram partem as a fundamental element of natural justice. This principle underscores the importance of allowing all parties involved in a legal proceeding to have the opportunity to present their case before a decision is reached.
However, it is worth noting that Malta is not the first jurisdiction to introduce a system of appeal without a formal hearing. The United Kingdom has had similar provisions in place for years, allowing the court to forego an oral hearing when it deems it unnecessary or when the appeal can be adequately addressed through written submissions.
One could perhaps argue that Malta should consider adopting a system similar to that of the Full Court of the Federal Court of Australia. In that system, appeals are decided solely based on written submissions if all parties provide their consent in advance. This approach could help strike a balance between the interests of efficiency and preserving the right to be heard. Nonetheless, it is crucial not to disregard the potential advantages of not having formal hearings. Conducting such hearings can be time-consuming and costly. Moreover, at appeals stage, many legal issues involve straightforward points of law that can be resolved through written legal arguments supported by documentary evidence already on record. In such situations, oral submissions may not significantly contribute to the resolution of the appeal.
