Authors: Davinia Cutajar, Rachel Grixti – WH Partners
The Challenges and Strategic Considerations of Abusus Iuris Claims in Maltese Civil Law
Some litigants go to court to vindicate a right; others go to wear an opponent down. In Malta, defendants on the receiving end of such tactics are not entirely defenceless. The Civil Code lets them counterattack with a claim for compensation for abusus iuris – the abuse of legal process. Yet the remedy is demanding: winning the main case is not enough; the counterclaimant must prove fault and show damage with something close to a surgeon’s precision.
The Legal Framework
The route runs through the Civil Code’s version of Aquilian liability, which treats misuse of the courts as a tort. Two provisions apply:
- Article 1031: establishes that every person is liable for damage caused through their fault.
- Article 1032: defines “fault” as imprudence, negligence or a failure to show the diligence of a bonus paterfamilias (a reasonable head of household).
In practice
Article 396 of the Code of Organisation and Civil Procedure (COCP) allows a counterclaim that is “connected with” the original claim – a test usually met because both arise from the same dispute.
Article 397 of the COCP then keeps the two claims yoked together for judgment. But Article 744 of the COCP can spring a monetary trap: if the damages pleaded exceed the court’s financial limits, the case may be bumped up to a higher court, adding time, cost and uncertainty.
The Damages Dilemma
A defendant who shows that the plaintiff’s claim was frivolous or vexatious may, in principle, recover full compensation for material and moral harm. In practice, valuing those losses means navigating Malta’s particular rules on damages.
Maltese tort law aims at restitutio in integrum: putting the injured party back where they started. That is straightforward for out-of-pocket costs. Less so for hurt feelings. Act XIII of 2018 opened the door to moral and psychological damages, but only through narrow gateways – largely for victims of specified crimes against dignity or the person.
The Evidentiary Burden
Here lies the real obstacle. The burden of proving a fact rests on the party alleging it. The defendant who counterclaims, therefore, must prove two things: that the plaintiff acted with fault – by bringing or maintaining a frivolous, vexatious or malicious claim – and that this fault caused concrete, measurable damage.
That is often misunderstood. A flimsy claim on the merits is not automatically an abusive one. The counter claimant must show that the decision to sue (or to keep suing) was itself negligent or malicious – and that it produced specific harm.
The point is illustrated in Avukat Marisa Vella noe v. Ian Clague (First Hall, Civil Court, 13th January 2023). The defendant counterclaimed for damages arising from a precautionary garnishee order filed by the plaintiffs. The Court noted that “the defendant did not bring forward any proof to substantiate his claim that he suffered any damages due to the precautionary garnishee order filed by plaintiffs. Indeed, the only proof brought forward by the defendant related to the actual merits of the case, and not to the counterclaim per se”. The counterclaim was rejected.
Strategic Considerations
A counterclaim for abusus iuris can be a sharp tool. It can also cut the hand that wields it. Costs can bite, and the evidential standard is unforgiving.
If the counterclaim itself is judged frivolous, the court may visit the same cost consequences on the defendant.
