Decoding the hospital’s judgment: A legal analysis | Carlos Bugeja

Much has been said about the judgment delivered by the Court of Appeal on 2 December 2024 in the case of Onor. Kap tal-Oppożizzjoni u Kap tal-Partit Nazzjonalista Bernard Grech et vs Avukat tal-Istat et (1398/2023). However, it would be fair to say that this judgment has unfortunately been largely misinterpreted in public discourse, both in terms of whether the State Advocate has the duty or the power to act and against whom such action can be taken. Due to the novelty and complexity of the case, as well as the inevitable political nuances, the legal implications of the judgment have been inadequately understood, with key aspects being overlooked.

This article seeks to address these gaps by providing a clearer and strictly legal analysis.

On 23 October 2023, the Court of Appeal confirmed the decision of the First Court to annul a number of contracts relating to the hospitals’ concessions, including a contract through which government land was granted under a temporary emphyteusis to a number of companies.

Following this, the Hon. Bernard Grech and the Hon. Adrian Delia (the plaintiffs) filed a lawsuit, arguing that the State Advocate should initiate judicial civil proceedings under Article 1051A et seq. of the Civil Code personally against all those who directly or indirectly contributed to this matter, including to reimburse the state for the harm suffered.

Basing their position on this article of law, the plaintiffs requested the Court to declare that:

• The State Advocate has the authority and duty to act in this regard;
• The State Advocate is empowered to act against the highest-ranking current or former officials of the Maltese Government and
• The judgment of 23 October 2023 was sufficient authorisation for the State Advocate to take the necessary and appropriate legal actions against these officials in their personal capacity and to hold them jointly and severally liable, as stipulated in Article 1051A of the Civil Code.

By means of a judgment delivered on 11 July 2024, the Civil Court, First Hall, dismissed all demands made by the plaintiffs.

The plaintiffs appealed.

The arguments presented by both parties involved numerous complex legal issues, including procedural matters, which are unlikely to intrigue anyone other than lawyers with a keen interest in the finer details of the law of procedure. The core of the appeal was whether the State Advocate has the authority to take action against certain individuals personally.

In other words, the crux of the central grievance in the appeal was to determine whether, in the circumstances described by the plaintiffs, the State Advocate has the authority to take legal action against third parties and if he was found to have such authority, whether the State Advocate is obliged to pursue legal action or whether it can be compelled to do so.

The State Advocate argued that both the provisions of the Constitution and the State Advocate Act (Chapter 604 of the Laws of Malta) quoted by the plaintiffs (now appellants) do not grant him general power to initiate lawsuits against third parties, as the plaintiffs had claimed.

Instead, it contended that he only has this power ‘under specific laws’, meaning in cases where the law explicitly grants the State Advocate such authority. For example, the State Advocate cited several laws under which it has the authority to act, including Article 33(2) of the Government Lands Act.

Article 33(2) of the Government Lands Act follows Article 31, which provides detailed rules on how government land can be disposed of. It states that any disposal of land made in a manner inconsistent with the provisions of Article 31 is null and void. The nullity of a disposal may be demanded by the parties involved in the disposal, by the State Advocate, or by any person who is a member of the House of Representatives at the time of the demand before the Civil Court, First Hall.

The person bringing the action may also make specific pecuniary demands under Article 33(3) against the possessor of the land, as outlined in Articles 541 and 543 of the Civil Code.

These claims include requesting payment for any profits the possessor of the land has made or could have made with reasonable care from the day they unlawfully took possession. It may also involve reimbursement for necessary expenses—an exercise that will likely require both financial calculations and legal analysis.

The judgment of the Court of Appeal was impeccably articulated, demonstrating a level of depth and sophistication that warrants careful and thorough analysis.

In its considerations, the Court of Appeal seized upon this point raised by the State Advocate, stating that anyone who has the authority to initiate action under Article 33(2) (including the State Advocate) also has the power to make these consequential claims, either within the same case or in a separate case, as they form part of the remedy. The Court stated that the State Advocate, like the plaintiffs themselves (as members of the House of Representatives), possesses the authority to act under Article 33 and to pursue the corresponding remedies therein.

This is perhaps the most interesting part of the judgment: Article 33(3) grants the State Advocate (and others, as previously mentioned) the power to seek pecuniary redress under Articles 541 and 543 of the Civil Code, which specifically refers to the possessor of the property, not third parties. This is further reinforced by the wording of Article 33(3), which states that "The effects and consequences referred to in Articles 541 and 543 of the Civil Code shall apply to whosoever acquires land…". This strongly suggests that under Article 33(3) of the Government Lands Act, the State Advocate and the other persons listed therein may only act against the concessionaires and not against any individuals personally, as the plaintiffs had demanded in their lawsuit.

However, the Court of Appeal clarified that this does not mean that the State Advocate has an obligation to act. It quoted Article 91A of the Constitution and Article 2(3) of the State Advocate Act, the latter stating that: “…he (the State Advocate) shall not be subject to the direction or control of any other person or authority.” Indeed, the Court went a step further, stating that the decision to act or not act is to be made solely by the State Advocate, using his discretion, and no authority is permitted to interfere in that decision.

The Court of Appeal then made a subtle yet elegant comment, which has gone largely unnoticed in public fora: it referred to the reasons put forward by the State Advocate as to why, in his opinion, it would not be prudent to take action, or at least not to take it at this stage, and suggested that it would be wise for those with similar authority under the law to act (basically the parties in the contract and any person who is a member of the House of Representatives) to consider these reasons as well. This seems like a veiled nudge toward exercising caution.

Therefore, the Court of Appeal largely confirmed the judgment of the First Court, which dismissed the case, other than the part that referred to Article 33 of the Government Lands Act, which it changed to state instead that the State Advocate has the power (but not the obligation) to act according to Article 33 of the Government Lands Act, assumedly against the concessionaires.