The infamous master of Nazi propaganda, Goebbels, is reported to have said that if you repeat a lie often enough it becomes truth. Social media has amplified this dangerous phenomenon by an infinite multiplier. Now, the original source of the lie may very well believe their own lie. Such people tend to be very confident about their ‘truth’. This ‘truth’ often chimes with the preconceived ideas, deep-seated biases and unconscious, self-serving agendas of the vast populace, who then go on to propagate the dangerous lie as a fundamental truth. The people who question everything on an empirical basis are few and far between. Their efforts to question the validity of this ‘truth’ fall like a few raindrops on a parched desert. Such is the ‘information’ age we live in.
Now, of course, the phenomenon described in the above paragraph is the cause of much destruction and hatefulness all over the world in all sorts of ways. We can certainly place the heinous Holocaust at its door. In this blog, however, I am going to describe how propaganda and disinformation has resulted in the perversion of the Maltese legal tool of the precautionary garnishee order, such that it is mostly used, from what I can see, very differently to how it was intended.
First of all, let’s examine the rationale for the application of a PRECAUTIONARY garnishee order. A person is owed a sum of money. The debtor has a bad debt record and the creditor has a clear trail of evidence categorically showing that the debtor owes him money. The creditor is therefore successful in their application to the court of a precautionary garnishee order against the debtor. Prima facie, the court agrees that there is a case against the debtor. The law stipulates that the creditor MUST open a case against the debtor within 20 days so that the merits of the case are examined in great detail. This the creditor does and a COUPLE OF MONTHS later, they are vindicated. The money deposited in court goes to the creditor. All well and good.
Now, let’s look at the precautionary garnishee order of 2013 against me. Our ex landlord successfully applied a precautionary garnishee order against me when we refused to continue OVERpaying for our consumption of water and electricity on the incorrect summer residence tariff. Ostensibly, there was prima facie evidence of a debt. Our ex landlord presented the Arms bill showing that the Arms account was in arrears. Our ex landlord then opened a court case in the Small Claims Court. So far so good. Did this court case in the SMALL CLAIMS COURT take a couple of months? Did it heck. Two years later and I had successfully defended the case to show that our ex landlord knew all about the residential tariff because he himself was on the residential tariff on his primary residence. The only way you can be on the correct tariff for people living in their primary residence is to complete Arms Form H. The only way for tenants to be on the correct tariff for people living in their primary residence is for the landlord to sign Section A of Arms Form H as account holder, and provide a copy of his identity card. In his years as our landlord, Mr Cachia Caruana had never mentioned Arms Form H. Two years later and the decision of the chairperson was that both of us were responsible for these arrears. I do not agree with this decision. We were only in the country ten days before we signed the rental contract so we could never, in our wildest dreams, have known how to be on the correct utility tariff. Our ex landlord had been a landlord for years before we rented the property from him, so he was completely to blame in my book. If I were a landlord in Malta in 2013, I would have made damn sure that my tenants were being billed correctly by Arms.
But all this is by the by. As you can see, the whole notion of the tool of the precautionary garnishee order had been perverted. We were deprived of access to our bank accounts, my salary was reduced to the minimum wage AND YET OUR EX LANDLORD HAD NOT WON THE CASE. He was found jointly responsible. Did we receive compensation for this injustice? Did we heck. Was he sanctioned for the vexatious application of the precautionary garnishee order? Was he heck. The application of a precautionary garnishee order does not depend on the merits of the case, we were told time and time again.
What happened to us in 2013 wasn’t that exceptional. For example, the precautionary garnishee orders against assassinated journalist Daphne Caruana Galizia by business moguls and politicians she wrote about are outrageous, in my opinion. This impinges on the freedom of expression of the press. I’ve also learnt that a few of my friends and acquaintance paid amounts garnisheed because they couldn’t face the lack of access to their bank accounts or a reduction to their salaries, even though they had a strong case. And then, of course, we have the current case against us.
So how has this misuse of the precautionary garnishee order come about?
Firstly, I would say that most people automatically defer to the decisions of the court. If a precautionary garnishee order is issued against someone then they must surely deserve it.
Secondly, and this is more insidious, there is a campaign, maybe unconscious, of lawyers, court officials, people in the know, who like the idea of the precautionary garnishee order. It makes things easier for them. This, coupled with the shroud of humiliated secrecy of most people subject to precautionary garnishee orders, and the mythology of the greatness of the tool of the precautionary garnishee order is born.
Entering a few select key words in google is such an easy way to conduct research. And yet, I have found no articles on the subject of the issuance of vexatious precautionary garnishee orders. Are there any journalists who have conducted research into how many cases were decided in favour of the plaintiff after a precautionary garnishee order was applied? How many were decided in favour of the defendant? Are there any interviews with people who have had precautionary garnishee orders against them and who feel justifiably aggrieved about this? I've looked and have found none.
I did find this article about the precautionary garnishee order. My heart sank when the author justified the ‘draconian and extreme’ application of the precautionary garnishee order but gave no mention of how ‘wholly unfair and unjust’ precautionary garnishee orders are when the defendant goes on to win the case, and when the decision of the judge to issue the precautionary garnishee order is technically incorrect. How can these legal practitioners not see that this is a case of Guilty before being proven Innocent? How can they not see that this is a case of Punishment before the case has even been decided?
“Why would such a procedure exist? While on the face of it, this all seems draconian and extreme, it is there to ensure that if a lawsuit renders a positive result for the plaintiff, the judgment would be able to be enforced. It would be wholly unfair and unjust if the plaintiff’s claim is accepted by the court and then there would be no funds at same’s disposal to actually obtain what is due. That is why procedures such as the garnishee order exist.”
I think that the author of this piece and all the judges responsible for the unfounded issuance of precautionary garnishee orders should be subject to precautionary garnishee orders, preferably for a couple of months or so. It seems to me as though they have absolutely no idea what unjustified injustice they have inflicted on the garnisheed, what glee they have granted the vexatious plaintiff by their misapplication of this legal tool.
My navigation through Malta's upside down legal and administrative jurisdictions continues apace with yet another dizzying encounter with the Maltese Justice system.
It all began on the 16th May, 2022, when our mum’s downstairs neighbours were granted a precautionary garnishee order in the amount of €50 000 against our mother, my brother, my sister and I. This meant that every bank account belonging to the four of us was frozen to the tune of €50 000. Collectively this therefore meant the freezing of circa €500 000. (€50 000 multiplied by circa 10 bank accounts.)
A PRECAUTIONARY garnishee order is a legal tool for a plaintiff to be able to apply to the courts for a freezing of assets / money before the outcome of a court case initiated by them is known. This money is deposited in court, pending the outcome of the court case. A precautionary garnishee order does not depend on the merits of the case. The idea is that the defendant is taken unawares and is not able to hide any assets or funds. So, in this case there is no time for the court to explore the merits of the case. The plaintiff has to simply show a prima facie case. In other words, the plaintiff needs to show that, on the face of it, they are owed a sum of money by the defendant. Of course, this means that the bar on the evidence provided is low. The merits of the case will be explored in the court case initiated by the plaintiff and is a completely separate matter to the precautionary garnishee order. If the plaintiff wins the court case when the case has been decided, possibly years later, then the money is transferred to the plaintiff. If, on the other hand, the plaintiff loses, then the money is returned to the defendant. Presumably there are also judgements which would award the plaintiff some of the deposited money but not all.
You may remember that our ex landlord, Mr Francis Cachia Caruana, applied a precautionary garnishee order against my salary and my bank accounts in August 2013 when we refused to continue OVERpaying on the incorrect Arms tariff. We spent 5 months without bank accounts and my salary reduced to the minimum wage. That year we bought our Christmas presents for our sons aged 5 and 8 on Christmas Eve. Two years later Mr Cachia Caruana did not win the court case. The judgement was that both Mr Cachia Caruana and myself were to share the cost of the Arms arrears because both of us should have known about the Arms domestic / residential tariff confusion. I do not agree with this judgement because Mr Cachia Caruana had been a landlord for years whilst we had only been in the country for 10 days before we signed the rental contract. But this is not the point. The point is that Mr Cachia Caruana did not win the case. While we were enduring financial hardship and lack of access to our bank accounts, he was living the life of Reilly without a care in the world. And then he didn’t win the case.
Before I returned to my country of birth after an absence of 21 years, I had never even heard of a precautionary garnishee order. I’ve been subject to two in the twelve years since my return. I have witnessed high profile cases of precautionary garnishee orders against journalists, primarily against assassinated journalist Daphne Caruana Galizia. Malta must be doing something wrong for precautionary garnishee orders to be applied so easily. Either the wording of Article 831 of Chapter 12 of the Laws of Malta must be amended or Article 831 is being misinterpreted by some judges. How can being punished before the case is heard ever be just? Seven months without access to our bank accounts and our salaries reduced to the minimum wage certainly feels like a punishment. Daphne Caruana Galizia was on her way to the bank to discuss the precautionary garnishee orders against her when she was assassinated. As a family we would fulfil our financial obligations in the event of a judgement against us. Where is the evidence of us being bad debtors? What sanction will there be against the plaintiffs if they lose the case? What redress would we have if we win the case? Are we convicted criminals to be punished in this way?