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.

Facts

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.

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