Posted Friday, March 23, 2018
Plaintiffs’ plea will be rejected when claims are not directed towards ‘proper and relevant’ defendant

Plaintiffs’ plea was rejected, with an order to pay all costs, in a hearing on the 12th of March concerning the filing of a case against, what appeared to be, the wrong defendant.

This was held by Adv. Kevin Camilleri, adjudicating a European Small Claims Procedure instituted by the plaintiff in line with Regulation (EC) no. 861/2007 in the case of Christopher Warner vs Bilom Group. The plaintiff held that he had purchased a property on the island and had engaged a contractor to carry out scheduled works which were not completed on time. The plaintiff demanded that he be compensated for the time he and wife spent at a hotel because the property was not “fit for purpose”. The plaintiff however, failed to prove the connection between the company mentioned in the contract, by the name of ‘BLMG Limited’, and the defendant.

The Tribunal held that it was highly disappointed by the level of preparation on the part of the plaintiff and commented on the fact that it is the responsibility of all the parties involved to provide the necessary clarifications and documentary evidence to the Court for their consideration.

The Court commented especially on the ambiguity regarding the identity of the defendant. While the proceedings were instituted against Bilom Group, another company, by the name of BLMG Limited, appeared to be on the public deed which was provided to the Court for proof of a contractual relationship between the parties. The plaintiff received an e-mail by the Court asking for clarifications but remained inert and did not heed to the warning at the bottom of the e-mail which instructs the relevant party that:

“Failure on the part of the claimant to abide by the directions/orders herein contained within the time-frame above- stipulated, shall empower the Tribunal to proceed toward judgment on the acts of the proceedings as compiled at present.

In light of the minimal evidence produced, the Court reiterated that proceedings are to be instituted against the proper and relevant defendant and that any connection between the two parties appearing as defendant in the courtroom and in the public deed must have been clarified by the plaintiff. It was explained that this is in line with the principle that both parties must have a direct interest in the case at hand, and that therefore, if Bilom Group was not in a contractual relationship with the plaintiff then this means that a grave error occurred on his part.

The Italian author Foramiti was quoted in this respect where he claimed that “contradittorio - tutto ciò che si fa in presenza delle parti interessate” which means that the adversarial principle rests on everything that is done in the presence of the interested parties.   

The Tribunal dismissed the claim and reminded the parties that it is not the role of the adjudicator to investigate ex officio unless expressly stated by law. Citing a previous judgement by the name of F. Advertising Limited v. Simon Attard et, it was explained that the role of the adjudicator in a case is to decide solely on the allegation which has been proved and not on what should have been proved and which was never produced.

Dr Malcolm Mifsud

Partner
Mifsud & Mifsud Advocates  
This article may also be accessed on Malta Today. 
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