Inapplicability of 469A COCP (Courts of Justice, Malta)

18 January 2011, Valletta (Ref: 901/2009, First Hall of the Civil Court). Plaintiff, a tourist coach operator, instituted proceedings under art. 469A of the Code of Organisation & Civil Procedure (COCP, Cap. 12 of the Laws of Malta), after Transport Malta (TM) terminated a contract whereby a concession to operate a particular service on particular routs had been granted. The defending government entity claimed, amongst other things, that 469A COCP was not applicable in the present case.

Defendant claimed that the plaintiff should have exercised the remedy available according to the same contract, according to which in case of a dispute, the matter is to be taken to arbitration. The Court, after anaylsing the contract in question, deemed that TM's decision to terminate the concession that it had granted to the plaintiff, was taken in line with the considerations of the contract, and therefore the defendant should have contested according to the means provided in the contract i.e. by instituting arbitration proceedings. The Court further observed that this matter is to be regulated by private law created by the parties and entered into voluntarily by the same parties. Therefore, the Court concluded, TM's action of termination did not even qualify as an administrative act reviewable under 469A COCP.

The Court did not agree with the defendant's claim that the possibility of taking the case to arbitration terminated when the contract itself terminated: there was nothing in the contract to imply this. To this the Court added that, apart from the fact that the act of termination was not reviewable under 469A COCP, the action was inadmissible also under 469A (4), since plaintiff possessed another remedy which he failed to avail himself of.

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