Prohibitory injunction turned down because of alternative sufficient remedy

On 22 August 2013, the First Hall of the Civil Courts, presided over by Mr Justice Joseph R Micallef, turned down a request by Silver King Limited to block the commissioner of police, Enemalta Corporation, the attorney general, the commander of the Armed Forces of Malta and the registrar of courts from removing a consignment of gasoil from its ship, the MV Silver King. The court argued that the ship-owning company may have further remedies, if damages were caused after the gasoil was removed from the vessel.

On 2 August 2013, Silver King Limited filed an application for a prohibitory injunction, asking the court to both block the removal from the MV Silver King of the cargo of fuel and transfer on board a barge or other vessel. This request was provisionally upheld.

The commissioner of police and the commander of the Armed Forces of Malta replied by stating that the applicants lacked the elements to have this application granted. Furthermore, the AFM should not be involved in this action, because all it did was accompany the vessel to port, and the case was then handled by the police. They further argued, together with Enemalta Corporation, that the ship-owning company had not listed any legitimate claims and that it would be prejudice if the warrant were permanently issued. The director-general of customs pointed out that the removal of the fuel was in fact pursuant to a court order issued by the inquiring magistrate.

In its considerations, the court held that on 1 July 2013, the Armed Forces vessel noticed a patch of oil within Maltese territorial waters. The AFM held all nearby vessels, including the MV Silver King, which is owned by the applicant, and accompanied them to the Grand Harbour. Once they arrived the police took over, the duty magistrate was informed and an inquiry was launched. The inquiring magistrate on 5 July ordered that none of the vessels should leave. On 9 July 2013, a court-appointed expert recommended that the fuel which was on board the MV Silver King was dangerous and should be disembarked.

On 11 July, Pierre Darmanin, a shareholder of the ship-owning company, filed for a warrant of prohibitory injunction, asking to block the removal of the fuel and its sale. On 15 July, fuel from the other vessels that had been seized with the MV Silver King was in fact removed by Enemalta, at the expense of the registrar of courts. On 2 August, Pierre Darmanin's request to issue a prohibitory injunction was dismissed. On the same day, the inquiring magistrate issued another order that the fuel had to be removed from the vessel by Enemalta.

The court pointed out that a warrant of prohibitory injunction is intended to block someone from doing something which would cause prejudice and damages. There are two concurrent elements that have to exist for the issuance of the warrant. The first is that the warrant will protect some right, and, secondly, the applicant has in fact that right, at least prima facie. If one of these two elements does not exist, a precautionary warrant cannot be issued. The procedure is of a summary nature, and in fact the recent amendments to the Code of Organisation and Civil Procedure imposed a short time limit for the warrants to be granted.

A precautionary warrant is an exceptional procedure and exists to assure the applicant that if the warrant is not issued, his or her right will be irremediably forfeited. If the warrant is upheld, this has no bearing on the final outcome of the action to establish that right. The court at this stage merely examines if that right is lost if the warrant is not issued. In the event of a warrant against a public authority, as in this case, the law requires that that the court establish whether the intention to block will be realised and the prejudice that the warrant applicant will suffer is proportionate. Therefore, a comparison is made between the advantage if the action and the damages it will create. However, in this particular case the ship-owning company failed to prove the right it wanted to protect by the warrant. In submissions, the applicant stated that if the fuel were removed, the company would suffer financial damages and possibly be forced to close.

However, the court considered that the vessel was not in a position to make use of the fuel because it was impounded and there was nothing to gain from keeping it. The applicant failed to show the court what action it had in mind. The court had no option but to consider also that the decision to remove the fuel was derived from an order from an inquiring magistrate, which in its order mentioned that the company may have had a right to compensation if the magistrate concluded that no criminal proceedings were to be undertaken.

The court then ordered that the warrant of prohibitory injunction be turned down and the provisional order be removed.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates