The First Hall of the Civil Court, presided over by Madame Justice Jacqueline Padovani, in the case ‘GasanMamo Insurance Ltd v Alexander Jan Edward Van Reeven and Jeanette Marie Van Reeven’, held, among other things that once the procedures to reinstate the case before the Constitutional Court had not been followed, the case was exhausted. The constitutional reference procedures – as to whether the mandatory arbitration provisions were contrary to the Maltese Constitution and the European Convention of Human Rights – could not be reinstated.
Alexander Jan Edward van Reeven and Jeanette Marie Van Reeven filed legal proceedings, requesting the court to re-hear its constitutional reference:
• To declare the mandatory arbitration provisions under legal notice 279 of 2005 and article 15(11) of Chapter 387 (The Arbitration Act) to be in violation of their human rights to a fair trial, article 39(2) of the Maltese Constitution and article 6 (1) of Chapter 319;
• To declare that the fact that the Constitutional Court had not been consistent in its reasoning was in violation of their rights to legal certainty as sanctioned by article 6 (1) of the European Convention of Human Rights and article 39 of the Constitution, as well as to give such order and directives as it deemed to be appropriate.
The applicants had previously already made their requests. However, they claimed that they had not been notified of the sitting of May 28, 2014. As they had not appeared at this sitting, the court decided to cancel their request for a constitutional reference.
They said they became aware of what happened on November 10, 2014, and so that there were grounds for the court to reopen the matter, and to consider their constitutional reference.
The couple submitted that the dispute concerned a case by GasanMamo Insurance against them, whereby they requested the court to declare that they infringed the insurance policy of car No. FBE663, which was the property of Jeanette Marie van Reeven. GasanMamo also sought for damages (€20,650) or such other sum.
There were two decisions of the Arbitration Centre: in ‘E. Schembri v Jeanette Marie von Reeven et’, dated April 8, 2010, and in ‘Marie Katerina Schembri v Jeanette Marie von Reeven et’ dated May 11, 2010.
The mandatory arbitration rules had been followed. These rules, they claimed, were unlawful and contrary to human rights – article 39 of the Constitution and article 6 of the European Convention.
It was stated that the mandatory arbitration provisions did not satisfy the criteria of independence and impartiality.
In addition, they claimed that if the court were to decide this case in proceedings which had been found to be unconstitutional, it would be applying a law which was null and without effect.
Reference was made to ‘Paola Vassallo v Maria Dalli (PA)’ dated October 30, 2008, where the court held that the mandatory arbitration provisions were null and in breach of human rights, under article 39 of the Constitution and article 6 of the European Convention. The mandatary arbitration provisions should not apply erga omnes, in accordance with the Rule of Law principle that the law should be the same for all.
The applicants maintained that there were grounds to annul the proceedings against them before the Arbitration Centre.
Applicants had not appeared for the sittings of the January 27, March 18, April 30 and May 28, 2014. The lack of interest persisted until November 14, 2014, and this despite the fact that this case concerned a human rights grievance, which in its nature was urgent
They also put forward the argument that the Constitutional Court, by giving conflicting interpretations on the same point of law, gave rise to legal uncertainty.
The Attorney General, in reply, contested the couple’s requests and said they were unfounded. He maintained that the court had appointed a date for a sitting to consider the constitutional reference. However, applicants failed to appear. Besides, no application was made for the court to reappoint the sitting for the rehearing of the constitutional reference.
The Attorney General contended that their claims were vexatious. The Arbitration award was given in 2010 and it did not result that constitutional proceedings at the time had been taken, nor any appeal had been filed.
The Attorney General said that the fact that the arbitrator was appointed by the chairman of the centre did not mean that the chairman or the executive interfered with the proceedings.
In mandatory arbitration, the parties could choose the arbitrator. The arbitrator was nominated by the chairman only when the parties could not agree on the appointment of the arbitrator.
The arbitrator enjoyed security of tenure and there existed guarantees of fair hearing. A party could still appeal to the courts in a mandatory arbitration.
Reference was made to ‘Joseph Muscat v Prime Minister (PA)’ dated September 5, 2010, and ‘H. Vassallo & Sons Ltd v Attorney General’ dated September 30, 2011, where the court found that mandatory arbitration violated human rights. However, in the ‘Untours Insurance Agency’ case dated August 25, 2013, the court decided that mandatory arbitration did not violate human rights.
The Attorney General argued that mandatory arbitration was not unlawful. He also denied that the Constitutional Court had changed its interpretation and violated the principle of legal certainty. In this respect the Attorney General asked the court to dismiss the applicants’ requests.
GasanMamo Insurance also contested the couple’s requests. They said that the applicants already had the opportunity to raise this constitutional issue but they failed to appear for the sitting. It was not true that applicants were not aware of the constitutional reference proceedings until November 14, 2014, the company said.
It was stated that the constitutional reference was now exhausted, in particular as the applicants did not file an application within the prescribed time for the rehearing.
GasanMamo Insurance maintained that the application for a reappointment of the constitutional reference by applicants was null and without effect and that there existed no grounds for the court to rehear the constitutional reference.
If applicants felt that their human rights were violated, they should have sued the Republic of Malta, as represented by the Attorney General. The Attorney General was not a party to these proceedings nor was he called into the suit. If a decision was given against a person who was not a party, such would be prejudicial to GasanMamo.
GasanMamo added that the applicants were in bad faith, and should not be allowed to avoid their responsibilities and to delay the proceedings. GasanMamo asked the court to dismiss the couple’s requests.
The court considered that the first sitting in regard to the constitutional reference case was before Judge Lino Farrugia Sacco on December 16, 2013. The case was transferred to Judge Joseph Zammit McKeon who abstained on March 18, 2014. The case was later assigned to Judge Mark Chetcuti who fixed a sitting for April 30, 2014.
Applicants claimed only the Attorney General was notified and the case was postponed for May 28, 2014.
The applicants failed to appear and the court cancelled the proceedings.
The court said that the couple did not file an application within 10 days for the reinstatement of the case. It noted that, in the sitting of May 28, 2014, the court felt that defendant applicants showed lack of interest as they failed to attend two consecutive sittings. Applicants had not appeared for the sittings of the January 27, March 18, April 30 and May 28, 2014.
The lack of interest persisted until November 14, 2014, and this despite the fact that this case concerned a human rights grievance, which in its nature was urgent.
Once the procedures to reinstate the case had not been followed, this constitutional case was exhausted and this application was not sufficient to reinstate the case, pointed out the court.
For these reasons, on March 12, 2015, the First Hall of the Civil Court accepted the Attorney General’s first five pleas, refused to reinstate the constitutional case and dismissed the applicants’ requests in terms of article 46(3) of the Constitution.
The court in addition abstained from hearing GasanMamo’s other pleas.
Dr Karl Grech Orr is a partner at Ganado Advocates.