Jose Herrera libel victory confirmed on appeal

The court of appeal has confirmed the legitimacy of an article which questioned whether the fact that architect Marc Bonello, former chairman of the Malta Maritime Authority (MMA) had a conflict of interest when his architecture firm had submitted a joint tender to the authority which Bonello happened to chair.

Professor Alex Torpiano, Dion Buhagiar and Marc Bonello in their own names and as representatives of the firm TBA Periti had filed libel proceedings against lawyer and current Parliamentary Secretary for Culture and Local Government Jose Herrera over an opinion piece titled Deep Water Quay Tender, which he had written for the Times of Malta in June 2004.

The plaintiffs had felt themselves defamed by the allegation that Bonello had tried to use his position at the MMA to favour his colleague Torpiano in an expression of interest and that Bonello had been responsible for the dismissal of Carmel Chircop from the MMA's legal office as he had been considered a whistleblower. It also alleged that Bonello had appointed a firm of architects with whom his firm had jointly entered the Cirkewwa Imgarr Terminal Project tender.

The court of magistrates had dismissed the claim in October 2012, holding it to have been fair comment, asking legitimate questions in the interests of transparency. The first court had, however, held that these allegations did not emerge from the article, even after repeated reading. It observed that Herrera had only said that “Bonello knows very well that at least two weeks ago upon his request he asked that the sitting of the industrial tribunal be postponed,” which did not convey the implications about Chircop to the average reader.

TBA Periti had filed an appeal, arguing amongst other things, that the first court had not analysed the article in its entirety or viewed it as a whole.

Herrera had submitted that the supposed allegations had not even been mentioned in the article. Bonello had been acting in his capacity as Chairman of the Malta Maritime Authority, which is a public organisation and open to criticism, Herrera argued, adding that the article constituted fair comment, was based on facts and had not insulted or affected the reputation of the complainants.

In his judgement on the case, judge Anthony Ellul, presiding the court of Appeal, noted that, in 1999 and 2001, the MMA had made several public calls for tenders for consultation over the Deep Water Quay in the Grand Harbour. TBA Periti had expressed its interest jointly with CMC Ltd. He observed that Bonello had been a partner in TBA Periti as well as vice Chairman of the MMA at the time, as well as being chairman of the Capital Projects Committee. He became chairman of the MMA in 2000.

Bonello himself had insisted that he had declared the conflict of interest whilst chairing the Capital Projects Committee. He claimed that the committee had issued a “call for registration of interest” for prospective bidders and that he had stopped attending Committee meetings after Torpiano had informed him of the offer that was going to be made.

Only one fact had been misreported, said the court. The call for expressions of interest had been reported as a call to tender. The court held that this reference was not a determining fact to the article, which it said had been intended to criticise how Bonello had occupied high ranking positions in the authorities at a time when his firm was bidding to be awarded a consultancy.

The questions and observations of the author had not exceeded the boundaries of fair comment, as Bonello had been a high-ranking public official at the time and therefore subject to wider criticism.

On whether the other architects in the firm had been negatively affected by the article, the court pointed out that Bonello had been a partner in TBA Periti at the time and that the firm could not expect to escape scrutiny.

With regards the article's oblique reference to the Industrial Tribunal case, the court of appeal agreed with the first court's reasoning in that the article had barely hinted as to who it was referring to and that it was “highly improbable” that the average reader would understand the relevance of this to the issue at hand.

Lawyer David Camilleri appeared for Herrera, whilst lawyer Ivan Gatt represented the appellants in the proceedings.