The First Hall Civil Court, presided over by Mr Justice Joseph Zammit McKeon, on December 11, 2014, in the case ‘Anthony Gatt and others v Philip Gatt and others’, held, among other things, that as the merits of the case were different from another case between the same parties, decided by the court on July 4, 2013, there were no grounds warranting the abstention of the presiding judge.
Anthony Gatt was a minority shareholder with 40 per cent of the shares in the company All Trading Vehicles & Spares Ltd, while his brother Philip Gatt held all the remaining shares. A dispute between the parties was decided on July 4, 2013. By application of article 402 (3)(d) of the Companies Act, the court ordered that the shares of Anthony Gatt in the company be transferred. Although the expert appointed by the court valued the shares and prepared his report, Philip Gatt allegedly resisted to execute the court order, raising frivolous claims.
Faced with this situation, Anthony Gatt proceeded to file separate legal proceedings to ask for an effective remedy, in terms of article 402 of the Companies Act; and to grant him what he was entitled to. Philip Gatt in reply pleaded that the presiding judge in this case should be changed in terms of article 723 (i)(d)(ii) of Chapter 12, as this judge had decided their previous case.
Philip Gatt in addition argued that the merits of this case had already been decided by a case – which had now become res judicata – and that this case should not be reheard and made subject to new court proceedings.
The court noted that on July 4, 2013, the court had delivered judgment in a case between the parties and ordered that Anthony Gatt’s shares in the company be sold. An expert, Kevin Mahoney, had been appointed to value Anthony Gatt’s shares and that would be the transfer price to Philip Gatt. The same expert had been tasked to supervise the process of the sale and transfer of the shares of Anthony Gatt in the company.
Kevin Mahoney had valued these shares but the share transfer to date had not been completed.
The court limited its consideration to deciding the first preliminary plea of Philip Gatt, whether the presiding judge should abstain under article 734 (1)(d)(ii) of Chapter 12 which provides:
“734 (1) A judge may be challenged or abstain from sitting in a cause;
(d) (ii) if he had previously taken cognisance of the cause as a judge or as an arbitrator;
“Provided that this shall not apply to any decision delivered by the judge which did not definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff...”
In ‘Carmelo Gauci v Giorgio Gatt et’, dated November 6, 1967, it was held that the cases where a judge should abstain were those specifically mentioned in the law. A judge could be challenged when he or she had already decided a case involving the same merits. If the merits were different, a judge could not be challenged.
In ‘Dr Alfred Mifsud v Hon. Prime Minister et’ dated March 15, 1996, the Constitutional Court said that the word ‘cause’ in the law referred to the pending case.
The fact that a judge had decided a legal point in another case is not a good enough reason for him to abstain in another similar case
In ‘Judge Lino Farrugia Sacco v Hon. Prime Minister’ dated November 17, 2014, it was held that a judge could only be challenged in the cases mentioned in the law and for exceptional reasons. The institute of making the presiding judge to abstain was to safeguard the interests of justice.
In view of these principles, as well as that a judge should be impartial, the law empowered a judge to abstain. Article 734(1)(d) of Chapter 12 applied when the same case came before the judge who had already given a decision on the merits. It did not apply if the decision was only decided in part and the case was pending to decide the merits.
This provision did also not apply when the decision did not decide the merits.
The fact that a judge had decided a legal point in another case was not a good enough reason for a judge to abstain in another similar case.
In this case, Anthony Gatt claimed that Philip Gatt was resisting to execute the order of the court and raising frivolous claims. He was having to request the court for an adequate remedy, under article 402 of the Companies Act.
Philip Gatt maintained that the First Court did not provide an effective remedy, and this was why these proceedings were being taken.
Philip Gatt put forward the argument that this was a new case, with a different case number, and could not be deemed to form part of the case ‘Anthony Gatt et v Philip Gatt et’ decided on July 4, 2013.
The court was of the opinion that this was a new case. It said that it had to consider Philip Gatt’s first plea that the presiding judge should abstain, by considering whether the merits in this case were the same.
Philip Gatt’s present case, which still had to be proven, was whether by the fact that he had not been paid for his shares in the company as decided by the court on July 4, 2013, in a case between the same parties, he had suffered unfair prejudice under article 402 of the Companies Act.
For this purpose, Philip Gatt requested the court to give him an effective remedy as provided in the same article 402.
On December 11, 2014, the court decided on Philip Gatt’s preliminary plea whether the presiding judge should abstain.
The court held that as the merits in this case were different from the other case between the same parties, decided on July 4, 2013, there were no grounds warranting the abstention of the presiding judge.
For these reasons the court dismissed Philip Gatt’s preliminary plea.
Dr Karl Grech Orr is apartner at Ganado Advocates.