Malta: Malta Court Removes Government Litigation Privilege In Judicial Review Cases

Last Updated: 30 September 2019
Article by Clement Mifsud-Bonnici and Nigel Micallef

The First Hall Civil Court (the "Court") held in a recent case that the general requirement for a claimant to warn Government entities of its intention to file a lawsuit before doing so by means of a judicial letter under Article 460 of the Code of Organisation and Civil Procedure (the "COCP") does not apply when the lawsuit relates to judicial review of administrative actions of Government under Article 469A COCP. The crux of the case at hand revolves around the relationship between two articles found in the COCP, being Article 460 and 469A.

This was the case of Paul Gauci in his own name and on behalf of the company E & G Properties Limited vs Superintendent of Cultural Heritage on behalf of the Superintendence of Cultural Heritage delivered by the Court on 9 July, 2019 and presided over by Honourable Judge Grazio Mercieca.

Background to the Law

Article 460 COCP provides that no judicial act commencing any proceedings may be filed, and no proceedings may be taken or instituted, and no warrant may be demanded against the Government, or against any authority established by the Maltese Constitution, other than the Electoral Commission or even against any person holding a public office in his official capacity (the "Government"), except after the expiration of 10 days from the effective service against the Government, of a judicial letter or of a protest in which the right claimed or the demand sought is clearly stated. This provision aims to serve as a mechanism whereby the Government is notified of any intended lawsuits and warrants with the intention of avoiding them amicably.

However, the same article provides an exemption to the above procedure which states that said procedure shall not apply when there are other provisions in the law which provides for another procedure that needs to be abided by. Other specific exemptions stipulated in the article include (i) actions for redress under Article 46 of the Constitution; (ii) warrants of prohibitory injunction; (iii) actions for the correction of acts of civil status; (iv) actions to be heard with urgency; or (v) referrals of disputes to arbitration.

Article 469A COCP, on the other hand, provides the procedure for the judicial review of administrative actions. This article provides that the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null or without effect in a number of cases and subject to exceptions provided for within Maltese law. This action for judicial review must be filed within a time period of 6 months from the date of the administrative act and this time period may not be extended or renewed unilaterally by the claimant.

From a quick review of both articles, and at face value, the action for judicial review in terms of Article 469A COCP is not one of the exceptions provided for in Article 460 COCP. This suggests that prior to proceeding with a lawsuit for the judicial review of an administrative action one would need to first notify the Government 10 days prior to filing the lawsuit as explained above. To date, this was the position consistently taken by our Courts.

The Court, in this case, disagreed with this position, as shall be explained below.


The plaintiffs, Paul Gauci and E&G Properties Limited, are the owners of a building complex in St. Julian's and were conducting demolition works on a part of the mentioned property. During the course of these works, the plaintiffs were notified by the defendants, Superintendence of Cultural Heritage, that a Conservation and Protection Order (the "Order") was issued requiring the plaintiffs to cease the demolition works on the property.

Following this decision, the plaintiffs challenged the Order and filed a lawsuit for a judicial review of the defendant's decision to issue the Order on the basis that it was ultra vires. The plaintiffs did file a judicial letter in terms of Article 460 COCP hoping to notify the defendants of their intention to challenge the Order, however, the plaintiffs failed to effectively serve that judicial letter on the defendant in time.

The Court was asked to determine whether in this instance (1) there exists the requirement of prior notice to the Government as a matter of Maltese public policy; and (2) whether the dispositions of Article 460 COCP applies to Article 469A COCP.

The Judgment

As to the first point on public policy, the Court noted that there is no definition of public policy at law. The Court provided that public policy embodies a number of ethical and political principles, and accordingly the observance and execution of such principles is indispensable for the existence of judicial order and the fulfillment of its essential aim. The Court also noted that the notion of public policy is dynamic, ever changing according to the necessity of times. Therefore, a principle which is deemed to constitute public policy in the present might not necessarily constitute such in the future.

The Court also considered the rationale behind the manner in which the legislator drafted the bill of laws which introduced Article 460 COCP in 1981. As per the parliamentary debate, the scope of Article 460 is that of allowing the Government to amend any wrongful position that it might have taken with regards to its citizens and thereby avoiding any potential proceedings. Whilst being an efficient remedy, this is also a privilege which the Government enjoys whereby it is placed on 'alert' and will have enough time to try and seek a resolution prior to the commencements of any potential proceedings.

The principles emerging out of Article 460 COCP certainly form an integral part of the Maltese public policy, the Court held. However, such principle only applies within limits. The provisions in Article 460 COCP cannot be used in an absolute manner as this would create an imbalance towards other fundamental principles, such as the judicial review remedy in terms of Article 469A COCP, which safeguards public policy. Article 742 COCP, the Court pointed out, obliges our Courts to preside and decide proceedings without any form of distinction or privilege.

On the second point of applicability, the Court held that Article 460 COCP should be interpreted restrictively. It also observed how the 1993 Commission, tasked with recommending changes in civil procedure, criticized harshly the rule set out in Article 460 COCP and unsuccessfully advocated for its removal. The 1993 Commission found that the situation in Malta treats the Government as an unequal litigant and this may even on certain occasions result in the violation of the fair hearing rule. Although the 1993 Commission understood the rationale behind the rule of prior notice, it held that the manner in which it is currently used has led to a situation where if one does not make a prior notification before commencing an action against the Government, it would lead to a nullity of the lawsuit subsequently filed. Such nullity may be invoked not only by the Government, but by the other defendants who are also party to the lawsuit.

The Court firmly declared that whilst there is no doubt that Article 460 COCP is still a norm of public policy; it is time that this norm is assessed so as to take into account other norms of public policy, such as that of equality of litigants before our Courts. Furthermore, the Court held that Article 460 COCP might constitute a breach of fundamental rights due to the litigation privilege granted to the Government. The Court made reference to a European Court of Human Rights judgment, Platakou v Greece[1], whereby the European Court held that:

"where there was a procedural rule that time ceased to run against the state during a judicial vacation, the Court found that the applicant had suffered inequality of arms since her application, rejected as out of time, would not have been deemed outside the time limit if the same rule had applied to her"

With regards to the relationship between the two articles, the Court held that Article 469A COCP establishes a judicial procedure for the review of an administrative action which is different to that provided for under Article 460 COCP. The Court considered in detail previous judgments given on the same matter however disagreed with the approach previously taken. This is because Article 469A COCP establishes a period of 6 months for such a lawsuit to be instituted and which period cannot be extended or renewed unilaterally by the private claimant. As Article 469A COCP is regulated by a separate procedure, it falls outside the scope of Article 460 COCP, the Court reasoned. The exception in the latter Article stipulates that Article 469A COCP shall not apply when other dispositions of the law regulate a particular procedure.

Concluding Thoughts

Whilst the Court as presided, is not the first to have taken this unorthodox approach, it still remains that this is not the position customarily adopted by our Courts in such instances. The Court prior to taking its decision noted a shift in the reasoning being adopted by several judges which have chosen to abandon the previous position and interpret Article 460 COCP and 469A COCP as being separate and autonomous.

Over the years, different and opposing views on the relationship between Article 460 COCP and 469A COCP were taken. The legislator should take cue from this latest judgment delivered by our Court to asses whether an amendment of Article 460 COCP is appropriate to avoid discrepancies in interpretation and application in the future.

[1] 11.01.2011, European Court of Human Rights.

This article was first published in The Malta Independent, 25 September 2019.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions