Ministry must pay lawyer €600,000 for uncollected, printed judgements

The justice ministry has been ordered to pay over €600,000 to the owners of a publishing company for uncollected compendiums of court judgments which were printed under a 25-year contract, signed in 1993.

The contract, between the government and lawyer Tony De Gaetano, his wife Josette in their own name and on behalf of Legal (Publishing) Enterprises, had been signed before the widespread proliferation of internet services in Malta.

The contract stipulated that the size of the run of the publications was to be of 500 per volume “in order to have always available to the general public any such volumes on demand.”

It also gave the publisher, De Gaetano, the option to withdraw from the agreement after 25 years from its signing, with the condition that any remaining stock from the initial 500 run, even copies still being published by that time, were to be acquired by Government on demand of the publisher, at 75% of their maximum price in 1993.

The 25-year period lapsed in 2018, but during the intervening period, the courts had switched to uploading judgments online in an electronic format. At that point, the plaintiffs had accumulated 55,000 loose-leaf volumes, 2,000 paperback volumes and 5,350 hardbound volumes in stock.

The De Gaetanos proceeded to exercise their right, as stipulated in the contract, and called upon the government to honour its contractual obligations and buy the volumes at the agreed price. The total amount due for the stock, including the applicable VAT, came to €600,332.

The First Hall of the Civil Court had handed down judgement in March this year, upholding the plaintiffs’ claim but only with respect to €262,556, representing the value of the volumes published up to time when judgments started to be published online. 

An appeal was subsequently filed by the De Gaetanos, who requested the court order the defendants to pay the full amount, with legal interest, as well as to take delivery of the printed material.

In a decision handed down in late January, the Court of Appeal, presided by Chief Justice Mark Chetcuti, Mr. Justice Joseph R. Micallef and Mr. Justice Tonio Mallia, upheld the claim.

The judges observed that the court of first instance had treated the contract as sui generis (unique), and that the plaintiff’s rights emerged from the legal concept of mandate.

“In truth it is true that the contract exhibited together with the court application is a sui generis one, in that in its first part it assigns a role to the plaintiffs, that of publishing the collection… at the plaintiffs’ expense. The defendant was not obliged to pay the plaintiffs, if not to acquire a number of copies of the publications for himself or as [otherwise] contemplated…under the same agreement. The Government made this agreement on condition that it does not compete with the plaintiff by publishing the judgments in question itself.”

“At first glance, one could say that the contract has elements of mandate, with regards to the task of publishing using the words ‘on behalf of’, this does not, in and of itself, render the contract between the parties simply a mandate with the powerful elements of fiduciary obligations, that would mean that all the dealings between the parties must be regulated by the institute of mandate, as argued by the first court,” the judges said.

Citing case law which established that the parties to a contract are presumed to have considered the circumstances and their interests before signing it. This meant that the relationship between the parties was regulated by the contract “and not some other principle, such as equity.”

Emphasising the fundamental principle that the will of the parties had to be respected, the judges said courts should not attempt to use their discretion as a substitute to that which the parties had freely agreed to.

The judges ordered the defendant ministry to pay the De Gaetanos the full amount, together with interest dating back to the notification of their judicial letter in December 2018.