The First Hall of the Civil Court, presided over by Justice Joseph R. Micallef, in the case ‘Corinne Ward v Foundation for Medical Services and the Chief Government Medical Officer as Superintendent of Public Health’, held that, before any action is instituted against the government or a government entity, one must necessarily serve on such entities a judicial letter or protest giving them prior notice of the dispute.
During the months of July 2012, the Foundation for Medical Services (FMS) issued a call for applications for a nursing director at Mater Dei Hospital. FMS appointed a selection board entrusted with hiring the director.
Ten persons showed an interest, among whom was the plaintiff, Corinne Ward. During an interview on September 19, 2012, Ward was informed by the board that she was not qualified for the job.
On the same day, Ward sent FMS a letter to protest this decision on the basis of the fact that it was not taken consistently and in terms of the requirements laid down in the initial call for applications. On October 2, 2012, FMS informed Ward that the decision was final and that she was given sufficient reasons and information to justify this decision.
Ward filed a complaint with the Ombudsman, who issued a report in favour of her claim on April 18, 2013.
However, prior to the Ombudsman’s report, Ward also served FMS and the chief government medical officer with a judicial letter, requesting them to reconsider her application on the basis of the fact that she was in fact properly qualified and to compensate her for any damages suffered as a result of the decision taken by the board.
FMS and the chief government medical officer were duly served with the judicial letter on March 20, 2013.
On March 18, 2013, Ward filed legal proceedings requesting the First Hall of the Civil Court to declare that the defendants, FMS and the chief government medical officer, had acted abusively, illegally and discriminatorily when the board decided to unilaterally change the requirements indicated in the call for applications, and consequently finding her ineligible for the job.
Ward also requested the court to order FMS and the chief government medical officer to reconsider her application and to reimburse her for damages suffered.
FMS and the chief government medical officer, in reply, claimed that, in line with Article 460 of the Code of Organisation and Civil Procedure (COCP), Ward’s legal action was null because the proceedings were instituted before the lapse of 10 days from when they were served with the judicial letter sent on March 14, 2013.
The chief government medical officer further argued that he was in no way involved in the decision-making process and therefore was not the proper defendant.
In this case, Ward brought the action before the lapse of the 10-day period. The court noted that the fact that the Court Registrar erroneously allowed the institution of the case did not validate the action
FMS further submitted that the plaintiff’s claims were unfounded since the decision taken by the board was intra vires. Moreover, FMS submitted that Ward had to bring forward proof that damages were suffered. The court considered the preliminary plea raised by the defendants on the basis of Article 460 of the COCP, whereby it was argued that the 10-day period had not yet lapsed from when they had been duly served with the judicial letter sent.
The court noted that Article 460 (1) of the COCP reads as follows:
“Subject to the provisions of sub-article (2), no judicial act commencing any proceedings may be filed, and no proceedings may be taken or instituted, and no warrant may be demanded, against the government, or against any authority established by the Constitution, other than the Electoral Commission, or against any person holding a public office in his official capacity, except after the expiration of 10 days from the service against the government or such authority or person as aforesaid, of a judicial letter or of a protest in which the right claimed or the demand sought is clearly stated.”
The court further noted that the action instituted by Ward did not fall under Article 460(2), which provides a list of actions which are exempted from the requirements under Article 460(1).
The court remarked that following the 1981 amendments, Article 460 was enacted in order to ensure that, with the exception of those actions listed in Article 460 (2), before any action is instituted against the government or a government entity, one must necessarily serve on such entities a judicial letter or protest giving them prior notice of the dispute, and allowing 10 days to lapse from such service before any legal proceedings are instituted.
The court further stated that the government and other entities mentioned in Article 460 (1) are placed in a special and privileged position. In view of the fact that Article 460 arguably restricts one’s right to access to justice, the court reiterated that such a provision should be interpreted restrictively.
Having said this, the court noted that such a procedural privilege is one of public order and must therefore be enforced, so much so that one cannot renounce such right.
Consequently, the court stated that when one brings an action against a public administration one must ensure that Article 460 is adhered to.
In this case, Ward brought the action before the lapse of the 10-day period. The court noted that the fact that the Court Registrar erroneously allowed the institution of the case did not validate the action. The court stated that an action instituted prior to the lapse of the 10-day period stipulated under Article 460(1) is not only null but deemed inexistent from the beginning.
The plaintiff argued that the action was instituted before the lapse of the 10-day period stipulated in Article 460(1) because she was duty-bound to observe another procedural provision, Article 469A of the COCP, which stipulates that an action to impugn an administrative act which is ultra vires must be filed within a period of six months from the date when the interested person becomes aware or could have become aware of such an administrative act, whichever is the earlier.
Moreover, plaintiff argued that the aim of Article 460 was achieved since the defendants became aware of the dispute prior to the institution of legal proceedings, that is, when Ward filed a complaint with the Ombudsman.
The court, however, rejected this argument stating that once FMS notified Ward that the decision of the Board was final, Ward was duty-bound to ensure that she files an action before the lapse of the six-month period stipulated in Article 469A.
The court further noted that Article 460 does not operate to extend the time period stipulated in Article 469A, and conversely, Article 469A cannot be used to do away with the procedure provided for under Article 460.
This effectively means that in view of Articles 460 and 469A, a person wishing to sue the government or any government entity has six months less 10 days to institute the action.
The court further stated that Ward’s action cannot be rendered lawful through the operation of the theory of jus superveniens, because this theory is not applicable in cases where the dispute is tied with the moment when the application is filed, but rather applies in cases where the verification of a condition or the lapse of a time period happens after the application is filed.
Furthermore, the court noted that a judicial act which does not adhere to Article 460 is null ab ovo and thus cannot be said to become existent when the 10-day period lapses.
For these reasons, on August 13, 2015, the First Hall of the Civil Court accepted the defendants’ preliminary plea, with costs against plaintiff, as legal proceedings were instituted in breach of Article 460(1) of the COCP.
Rachel Genovese is a trainee at Ganado Advocates.