Cap. 635 Art. 8Representative actions. Cap. 12. Duties of qualified entity. Measures which may be sought. Contents of sworn application. Cap. 12. Pre-trial hearing. Admissibility. Certain matters shall not bar issue of an admissibility decree. Decree ordering the continuation of proceedings. Substitution. Withdraw

(1) (a) Representative actions as provided for by this

Act may be brought before the Civil Court and, or before a national administrative authority by qualified entities designated in accordance with article 5 as follows:

(i) in the case of representative actions these shall be brought before the Civil Court by means of a sworn application in accordance with sub-article (4):

Provided that when such actions relate to redress measures, then such action shall, in all instances in so far as they relate to redress measures, be filed before the Civil Court irrespective of the amount of the claim being made; and

(ii) in the case of representative actions, in so far as these relate to injunctive measures brought before a national administrative authority, such actions shall be made in accordance with the applicable procedure established by law relating to the making of such actions for injunctive measures before the aforesaid authority;

(b) The consumers’ interests in representative actions shall be represented by qualified entities and those qualified entities shall have the rights and obligations of a plaintiff in the proceedings. The consumers concerned by a representative action shall be entitled to benefit from the measures referred to in sub-article (11);

(c) Prior to the institution of a representative action, a representative action agreement, subject to the provisions of this Act, shall be entered into between the consumer and the qualified entity whereby the consumer consents to his inclusion in the representative action proceedings and to the appointment of the qualified entity as the plaintiff, and includes the claim of the consumer and may also include the requirement to pay a modest entry fee or similar charge in order to participate in that representative action;

(d) The provisions of the Code of Organisation and

Civil Procedure, insofar as they are consistent with the provisions of this Act, shall apply to proceedings under this Act, including with reference to the written pleadings, unless brought before a national administrative authority.

(2) (a) The qualified entity shall act in the best interests of the consumers being represented.

(b) The qualified entity shall explain to the consumers the nature of the representative action proceedings and shall also keep them informed on the progress of the proceedings including any judgment or decree that is binding on those consumers and, if applicable, on whether the qualified entity shall appeal from the judgement delivered by the Civil Court.

(c) The qualified entity shall keep and maintain a register to record the identity and claims of those consumers who are part of the representative action proceedings and shall, on request, make such register available to the defendant.

(3) Qualified entities shall be entitled to seek at least one (1) of the following measures:

(a) injunctive measures as provided for in article 9;

(b) redress measures as provided for in article 10.

(4) (a) The actions brought in front of the Civil Court shall be brought by a sworn application, and the plaintiff shall request the Civil Court to declare that the representative action procedure is the most appropriate procedure in the circumstances.

(b) The sworn application shall:

(i) state the name of the plaintiff and his specific representative capacity according to this Act;

(ii) state the name of the defendant;

(iii) state the funding sources of the representative action;

(iv) provide a description of the group of consumers concerned by the representative action;

(v) describe the common issues for the claims which the plaintiff has brought in the representative action;

(vi) state the claim or claims being requested, the redress measure being sought and if applicable, attach a breakdown of the relative amounts due to the group of consumers;

(vii) provide sufficient evidence that satisfies the criteria required to establish the admissibility by the Civil Court according to sub-articles (6) and (7);

(viii) provide the Civil Court with a representative action agreement in accordance with sub-article (1)(c);

(ix) specify the injunctive measures, if any, as established in article 9, that are being requested:

Provided that the provisions of article 156 of the Code of Organization and Civil Procedure shall, where applicable, also apply to the sworn application in representative actions brought in front of the Civil Court:

Provided further that the Civil Court shall order the amendment of the sworn application when other consumers opt-in within the period mentioned in the proviso to sub-article (8) or after obtaining permission from the Civil Court in terms of sub-article (13)(a):

Provided further that when an injunctive measure is being requested, the provisions of article 9 shall apply.

(5) The Civil Court shall hold a pre-trial hearing to assess the admissibility of the representative action in accordance with this Act and any other applicable law and shall:

(a) issue a decree ordering the continuation of the proceedings together with other orders as it may deem fit or ordering the dismissal of the action:

Provided that an appeal from the decree shall be filed within ten (10) days from date of delivery of decree; or

(b) issue a decree to stay the proceedings if the parties agree, during the hearing, to attempt to settle the lawsuit according to article 12.

(6) (a) The Civil Court shall issue a decree on the admissibility of the proceedings for a representative action when the plaintiff proves to the satisfaction of the Court that:

(i) the claims in the proceedings are brought on behalf of an identified group of consumers and raise common issues;

(ii) the representative action is the most appropriate means for the fair and efficient resolution of the common issues; and

(iii) the representative action is not manifestly unfounded.

(b) In determining whether the representative action is the most appropriate means for the fair and efficient resolution of the common issues for the purposes of paragraph (a)(ii), the Civil Court shall take into account, amongst other things:

(i) the benefits of the proposed representative action; and

(ii) the nature of the group of consumers.

(7) The Civil Court shall not refuse to issue a decree for proceedings as a representative action solely on any of the following grounds:

(a) the claim requires individual assessment after determination of the common issues;

(b) the claim relates to separate contracts involving different consumers;

(c) the amount and nature of the damages sought vary among the different consumers.

(8) (a) The Civil Court shall decree the continuation of proceedings if:

(i) it declares the proceedings as appropriate for representative actions in accordance with sub-article (6); and

(ii) it is satisfied that the claims are pursuant to the laws listed under the Schedule.

(b) The decree shall include:

(i) the name and address of the plaintiff;

(ii) the name and address of the defendant;

(iii) a description of the group of consumers;

(iv) the common issues for the claims which the plaintiff has brought in the representative action;

(v) the claims sought; and

(vi) information on the legal effect of a judgment in the representative action:

Provided that the decree may also contain such conditions as the Civil Court may deem fit and the Civil Court shall order that such decree is to be published in the Gazette and in local English and Maltese newspapers and in any other media if the Civil Court deems it fit, provisionally at the expense of the plaintiff, and shall state that any other consumers who desire to be represented by the qualified entity, may do so within a specified date as determined by the Court, which date may not exceed five (5) months from the date of the decree, by registering their claim with the plaintiff and entering into a representative action agreement in accordance with paragraph (c) of sub-article (1).

(9) If at any time after the pre-trial stage, it appears to the Civil

Court that the qualified entity no longer satisfies the criteria mentioned in article 5 or is no longer, for any other reason, in a position to represent the interests of the represented consumers, the Civil Court may, either of its own initiative, or on the application of any of the represented consumers, or on the application of the defendent:

(a) substitute the qualified entity by another qualified entity which satisfies the criteria mentioned in article 5 as the qualified entity; and, or

(b) make any other order it considers appropriate.

(10) If the consumer no longer wishes to be represented by the qualified entity in the representative action, the consumer shall notify the qualified entity in writing and shall no longer benefit from any remedies obtained through the representative action proceedings. The qualified entity shall inform the Civil Court of any withdrawals by consumers in the group of represented consumers.

(11) The Civil Court, on the application of any of the parties, may issue any decree it considers appropriate with respect to the conduct of representative action proceedings to ensure their fair and expeditious determination and, for this purpose, may impose such terms on the parties as it considers appropriate.

(12) (i) A judgment on the common issues for the represented consumers shall bind the represented consumers.

(ii) The plaintiff shall give notice of any judgment or decree to those represented consumers who are bound by it in a form and manner that is approved by the Civil Court.

(iii) When in its judgement the Civil Court orders the defendant to pay compensation, it may order the defendant to credit the amount due to a specific account held by the plaintiff and may give such orders, as it deems necessary, to the plaintiff for the effective distribution of that compensation among the represented consumers.

(13) (a) A consumer who does not opt-in in accordance with the proviso in sub-article (8) may not do so after the specified date, except with the permission of the Civil Court by means of an application. The Civil Court may grant such permission if it is satisfied that the delay was not caused by the fault of that consumer and the continuation of the proceedings would not suffer substantial prejudice if permission were granted:

Provided that if permission is granted, the consumer shall enter into a representative action agreement in accordance with paragraph (c) of sub-article (1):

Provided further that no appeal shall lie from the Civil Court’s decision to grant or refuse permission to opt-in.

(b) A consumer who has already filed a cause that raises the common issues in the representative action may not be a represented person unless the consumer discontinues or applies to stay that cause before opting-in in the representative action.

(c) A consumer may also not be a represented person when:

(i) he has already reached an out of court settlement on the common issues set out in the representative action’s decree with the defendant; or

(ii) an arbitration decision between the consumer and the defendant has already been issued on the remedies sought by the group of consumers; or

(iii) a decision on the common issues set out in the representative action’s decree has already become res judicata before a tribunal or similar body or court of civil jurisdiction and the said tribunal or similar body or court has already decided on the remedies sought by the consumer.