Gathering Evidence in Aid of Foreign Litigation Guide |
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Malta |
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(Europe)
Firm
Ganado Advocates
Contributors
Clement Mifsud-Bonnici |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. Under Maltese procedural law, it is possible to gather evidence in aid of foreign litigation, either in terms of the applicable EU regulations, particularly Regulation 1206/2001, or else in accordance with the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), or alternatively through national law instruments. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Malta is a party to the Hague Evidence Convention, as well as the Council Regulation (EC) No 1206/2001 of 28 May 2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters (“Regulation 1206/2001”) which is directly applicable in Malta. Apart from that, under Malta’s Code of Organization and Civil Procedure (Cap. 12 of the Laws of Malta), it is also possible to obtain evidence through the procedure established for letters rogatory (or letters of request), including by way of a video conference. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Under the Hague Evidence Convention, requests must be sent to the Maltese Central Authority, being the state advocate. However, foreign diplomatic or consular representatives can gather evidence from their own nationals without prior authorization. Under Regulation 1206/2001, direct requests in terms of Article 2 may be transmitted directly to the competent court which examines the request. There are various competent courts, including the First Hall of the Civil Court, the Civil Court (Family Section), the Court of Magistrates (Malta), the Court of Magistrates (Gozo), and the Court of Magistrates (Gozo) (Superior Jurisdiction). The appropriate court will proceed with the request if all requirements are complied with. Requests in terms of Article 17 must be submitted to the competent authority, being the state advocate. Once a request is submitted, the court will assess whether or not it can collect the evidence and will either collect it itself or will appoint a judicial assistant to do so. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Information can be sought in the form of written questions, affidavits, or alternatively, viva-voce testimony by video conference. It is possible to request that a witness produce certain specific documents in a witness summons. However, there is no procedure for the discovery of documents under Maltese law. |
| Who bears the burden of showing whether any privileges apply? | It is up to the witness to show that any applicable legal or professional privilege claimed actually applies. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | When evidence is taken under the Hague Evidence Convention, Article 11 provides that the witness may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence, either under the law of the state of execution; or under the law of the state of origin, and the privilege or duty has been specified in the letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority. Similarly, when evidence is taken under Regulation 1206/2001, Article 14 provides that a request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence either under the law of the member state of the requested court, or under the law of the member state of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Viva-voce testimony may be conducted remotely by video conference. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | It has not. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | They may voluntarily give evidence in a foreign proceeding, and there are no local restrictions. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Our jurisdiction does not make any provision for the taking of evidence in support of foreign arbitration. Requests under the Hague Evidence Convention, however, when a foreign arbitral tribunal is receiving judicial assistance in the seat, may be received by the central authority. There is therefore a requirement for judicial involvement in order for requests to be processed in support of foreign arbitral proceedings. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes. Under Maltese procedural law, it is possible to gather evidence in aid of foreign litigation, either in terms of the applicable EU regulations, particularly Regulation 1206/2001, or else in accordance with the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), or alternatively through national law instruments.
Malta is a party to the Hague Evidence Convention, as well as the Council Regulation (EC) No 1206/2001 of 28 May 2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters (“Regulation 1206/2001”) which is directly applicable in Malta. Apart from that, under Malta’s Code of Organization and Civil Procedure (Cap. 12 of the Laws of Malta), it is also possible to obtain evidence through the procedure established for letters rogatory (or letters of request), including by way of a video conference.
Under the Hague Evidence Convention, requests must be sent to the Maltese Central Authority, being the state advocate. However, foreign diplomatic or consular representatives can gather evidence from their own nationals without prior authorization. Under Regulation 1206/2001, direct requests in terms of Article 2 may be transmitted directly to the competent court which examines the request. There are various competent courts, including the First Hall of the Civil Court, the Civil Court (Family Section), the Court of Magistrates (Malta), the Court of Magistrates (Gozo), and the Court of Magistrates (Gozo) (Superior Jurisdiction). The appropriate court will proceed with the request if all requirements are complied with. Requests in terms of Article 17 must be submitted to the competent authority, being the state advocate. Once a request is submitted, the court will assess whether or not it can collect the evidence and will either collect it itself or will appoint a judicial assistant to do so.
Information can be sought in the form of written questions, affidavits, or alternatively, viva-voce testimony by video conference. It is possible to request that a witness produce certain specific documents in a witness summons. However, there is no procedure for the discovery of documents under Maltese law.
It is up to the witness to show that any applicable legal or professional privilege claimed actually applies.
When evidence is taken under the Hague Evidence Convention, Article 11 provides that the witness may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence, either under the law of the state of execution; or under the law of the state of origin, and the privilege or duty has been specified in the letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.
Similarly, when evidence is taken under Regulation 1206/2001, Article 14 provides that a request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence either under the law of the member state of the requested court, or under the law of the member state of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court.
Viva-voce testimony may be conducted remotely by video conference.
It has not.
They may voluntarily give evidence in a foreign proceeding, and there are no local restrictions.
Our jurisdiction does not make any provision for the taking of evidence in support of foreign arbitration. Requests under the Hague Evidence Convention, however, when a foreign arbitral tribunal is receiving judicial assistance in the seat, may be received by the central authority. There is therefore a requirement for judicial involvement in order for requests to be processed in support of foreign arbitral proceedings.