Intervening in a court action (Court of Appeal, Malta)
Written by Ivan Mifsud Friday, 14 May 2010 07:23 Last Updated on Monday, 17 May 2010 16:15
11 May 2010, Valletta, Ref. 278/2010/1. This is an appeal from the judgement of 7 April 2010, when the Court had ordered the issuing of a temporary permit to a pharmacy, to operate from a different premises while works were underway. The Court of Appeal dismissed appeals from different parties, all of whom felt they had a say in the question of whether or not a pharmacy could be temporarily relocated to another site.
The Chamber of Pharmacists sought to intervene in the court action between the pharmacy owner who was seeking permission from the government to relocate his business. The Court of Appeal confirmed that the Chamber lacks the necessary juridical interest required by the Code of Organisation & Civil Procedure (COCP, Chapter 12 of the Laws of Malta). The Court quoted from the Italian Corte de Cassazione:
‘l’interesse ad agire…non puo’ consistere in un mero interesse astratto ad una piu’ corretta soluzione di una quistione giuridica…’ (2003 judgement, number 13091)
Translation: ‘the interest to act… cannot consist of a mere abstract interest in the finding of a correct solution to a juridical issue…’
The Court also commented that the Chamber was not a regulator, and had no say or authority in the manner in which the laws at issue were to be interpreted and applied. Even if the laws in question were passed by agreement between the Government and the Chamber, once they were passed they acquired a life of their own, and were to be interpreted and applied by the State like any other law that was passed in the public interest. On the other hand, the Chamber could have been called as a witness to explain the history of the laws in question and how they came about.Another party asked to be called in to the case as a defendant, in order that it would be able to contest the plaintiff’s claims. The Court of Appeal held that while a third party can ask to intervene in a court action, to ask to be included in a court action as a defendant is not acceptable.
One of the claims brought by the third parties was that the permission for a temporary relocation of the pharmacy was illegal in terms of the relevant regulations (Legal Notice 279 of 2007). The Court of Appeal observed that this claim was an instance of a private citizen seeking to uphold a rule of Administrative Law. The Court of Appeal held that in principle it was possible for a private citizen to take such a course of action, where the laws in question, while being administrative by nature, also create private rights tantamount to legal servitudes. In this regard, the Court of Appeal referred to Eminyan v. Mousu and Risiott v. Bajada (Civil Court, First Hall, 22.05.98 - not available online). In the present case, however, no such private rights tantamount to a legal servitude were created.
Finally, the Court of Appeal criticized the Court of First Instance for seeking a remedy in the case before it. In an action for judicial review, the Court should restrict itself to upholding or annulling the decision under review, and should never substitute the administration by deciding itself.
To read the judgement click here.
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