Few legal actions are unusual as the jactitation lawsuit, by means of which an applicant requests the court to compel another person to sue them. Strange as it may seem, the jactitation suit forms part of Maltese law and is regulated by Article 403 et seq. of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta).
A jactitation suit is a legal action available to any person against whom a claim is vaunted in writing by another person (the vaunter) but never followed with a court case. The applicant in a jactitation suit requests that the vaunter institutes the requisite lawsuit to forward his claims and have them confirmed, and this within a specific time that is fixed by the court, which cannot exceed 3 months. If the jactitation is acceded to and the vaunter defaults from instituting his case, he would be precluded in perpetuity from doing so, and the applicant would thus obtain certainty that he will never face such a judicial demand.
In a recent judgment, the Civil Court, First Hall (the ‘Court’) examined the elements required for a jactitation suit to succeed.
Court rejects claimant’s request to be sued
This case concerned a private alley which both the plaintiff company and the defendants maintained to own. The plaintiff company had filed a planning application to develop a property in the vicinity and included this alley in its application, declaring itself to be the owner thereof. The defendants, who also owned land in the vicinity, objected to this application claiming to own the alley themselves. Apart from objecting to the application, they also filed a judicial protest in court against the plaintiff company requesting it to stop vaunting pretensions on the alley.
Following a number of protests and counter-protests filed by both parties in court, the plaintiff company instituted a jactitation lawsuit requesting the Court to force the defendants to file a court case on their pretensions relating to this alley.
The defendants objected to this request, raising several pleas in their reply which mainly dealt with the elements of the jactitation action and with the inapplicability in this case.
First element – the vaunter must be present in Malta when the lawsuit is filed
For a jactitation suit to be filed, the vaunter must necessarily be present in Malta. There is only one exception for a jactitation suit to be filed against absent persons and that is if they have vaunted their claim in Malta by means of a judicial act, either personally or through their mandatary 3 months prior to the filing of the jactitation suit.
In one of their pleas, the defendants argued that the applicant could not proceed against 3 of the defendants since they do not reside in Malta and had not vaunted their claim in the time specified in the law. The court observed that this was the case and declared that the plaintiff company could not proceed against them and proceeded to consider the rest of the pleas in so far as the other defendants were concerned.
Second element – lawsuit to be filed within 1 year from when the pretension is vaunted
The law also requires the applicant to proceed with the jactitation suit within one year from when the pretension is made against him. This requirement has been and remains a point of contestation in jactitation suits where the pretension is repeatedly made, as was alleged to have been in this case.
The plaintiff company maintained that this one-year period started to run from when the defendants last raised their pretension in writing, whereas the defendants maintained that it started to run from when the pretension was first made.
The court referred to two differing jurisprudential positions and concluded that the time starts to run from when the last pretension is made. For this reason, it refused to accept the plea of the defendants and went on to examine the other elements.
Third element – the pretension must be spontaneous and not reactionary
The applicant must also go on to prove that the pretension as vaunted was not a reaction to the applicant’s own pretensions or actions.
The court explained that the defendant’s pretension was made after the plaintiff company had itself vaunted a claim by declaring to be the owner of the alley. Their pretension was therefore not spontaneous but a consequence of the plaintiff company’s own pretension. The defendants could therefore not be forced to file a court case against the applicant.
For this reason, the court rejected the plaintiff company’s request.
For more information on jactitation suits, do not hesitate to contact Dr Simon Galea Testaferrata, Dr Matthew Camilleri or any other member of Iuris Advocates.