Exercising remedies other than constitutional: the principles (Civil Court, Constitutional jurisdiction)

30 September 2010, Valletta (Ref: Applic. No. 31/2010). The First Hall of the Civil Court in its constitutional jurisdiction, in the process of declining a claim for breach of Human Rights under art. 46(2) of the Constitution and art. 4(2) of the European Convention Act, listed in detail the principles to be considered when deciding whether there existed an alternative effective remedy.

The Court explained (p. 23 et seq of the judgement):

(1) The alternative remedy must be accessible, deserving, effective and adequate to address the alleged breach. It need not be such as to guarantee a successful outcome: it suffices that the remedy can be availed of in a practical, effective and efficaceous manner;

(2) When an ordinary remedy is clearly available, the individual must seek to avail himself of it. It is only after seeking to avail oneself of this remedy, or after it appears that this remedy is not effectively available, that constitutional redress should be sought;

(3) The Court's discretion in deciding whether to accept to hear a constitutional case must prevail, unless serious and grave reasons of illegality, injustice or manifest error in the use of such discretion are brought;

(4) The Court exercises such discretion on a case-by-case basis, considering the facts and circumstances of the actual case before it;

(5) The Court will not decline a constitutional case because the plaintiff failed to avail himself of the alternative remedy, if the plaintiff shows that the course of action would not have led to a complete remedy in his particular case;

(6)Failure to avail oneself of an ordinary and effective remedy, because of the behaviour of somebody else, could result in the Court deciding to exercise its power to consider a constitutional case;

(7) If the court, at first instance, exercises its discretion without delving sufficiently into the matters on which its discretionary decision is based, at second instance the decision may be cast aside;

(8) When the situation is such that availing oneself of the other remedy, and the constitutional action, will result in a duplication of each others' work, the court acting in its constitutional capacity will tend towards refusing the action, unless the case of its very nature resembles a constitutional issue;

(9) The Court must exercise its discretion in a prudent manner. When it appears that there is or there is going to be, a serious breach of fundamental human rights, the constitutional court will not decline to hear the case.

The Court listed the caselaw on which the above-listed points are based (pp. 25-26 of judgement) and, then applied these considerations to the actual case before it. This case was lodged by members of the family of a person who died from an asbestos-related illness, having worked for many years in an asbestos-contaminated environment. Plaintiffs claimed breach of a number of fundamental human rights, but the Court ruled that an action for damages under civil law would have been a good and effective remedy.

Click here to go to the actual judgement.