Posted Friday, August 03, 2018
Prohibitory injunction upheld only if it protects a right

The First Hall of the Civil Court indicated that a warrant of prohibitory injunction is upheld only if it protects a right. This was held in Dr Johann Craus v Kummissjoni ghar-Servizz Pubbliku u Segretarju Permanenti fil-Ministeru ghas-Sahha, decided on 18 July 2018.

In his application Dr Craus asked the court to issue a warrant of prohibitory injunction in order to bar the Public Service Commission from appointing an Obstetrics & Gynaecology Consultant at the Ministry of Health. The Public Service Commission (PSC) last December issued a call, but Dr Craus alleged that the process lacked a fair hearing and equality of arms.

The PSC replied to the application by stating that the applicant did not have legal grounds for the warrant. It held that Dr Craus had an appointment for a meeting, however, he filed the application instead and therefore, cannot complain of the process.

Mr Justice Joseph R Micallef, who presided over the proceedings, analysed the evidence brought before the court. The applicant is a surgeon specialised in Obstetrics. Six applicants had applied for the call issued by the Ministry for the post of consultant. The adjudication board was composed of three persons, one of whom is Dr Marc Sant. Two of the applicants withdrew their applications. Dr Craus, was called for an interview, but was ranked third. Two of the applicants worked in the private clinic of Dr Marc Sant. Dr Craus, filed a complaint on his ranking, as allowed by the PSC rules. The Board replied to these complaints. The PSC turned down Dr Craus’s request to be handed the marking of the fellow candidates.

From a legal point of view the applicant has to show the court two elements for the warrant to be issued. The first is that the warrant is required to protect a right and the second is that a right exists on the face of it. These two elements must exist together and are not alternative. If any of the elements does not exist, then the warrant cannot be issued. This is because the procedure to issue a warrant of prohibitory injunction is an exceptional procedure and is not copied in other procedures. The applicant must show that without the warrant, the right he is trying to protect will disappear. The right sought will have to still be established in a court case. In cases of applications for a warrant against the government, the applicant must also prove that the government was going to per-form the act that he is trying to block, and if that act takes place, the prejudice is disproportionate to what will take place if the government had to continue with the act.

In this particular case Dr Craus wanted the court to issue the warrant because according to him, the PSC were not following the rules of natural justice and did not follow the law but followed a manual. The applicant complained that there are issues of a conflict of interest, lack of transparency and a lack of a fair trial before the PSC.

The Court disagreed with the PSC, which argued that the procedure before the PSC should not be compared to litigation and therefore, there should be equality of arms. The petition proceedings is the only remedy a candidate may have to stop the procedure to choose a candidate of a post and is used to investigate the choice procedure.

With regard to Dr Craus’s claim that the PSC did not follow the law, but followed a manual, the Court did not agree, since it pointed out that the manual was based on a legal notice. In fact, the manual gives guide lines on the organisation and leadership in the public sector.

The applicant of a warrant should show more than that there exists a difficulty. The prejudice dictates that there exists no other remedy apart from stopping the defendant from continuing with his action. In this particular case the applicant is not asking for the PSC to stop the process of choosing a consultant, but it should continue as long as it follows the law. The applicant argued that without the warrant, it would be difficult to institute further action, since the PSC made it clear it would not give the information that the applicant requested. But this, in fact, puts in doubt whether the right exists or otherwise. Furthermore, the warrant is not used for the defendant to do something specific, since there are other remedies. The warrant is intended to block someone from doing something. The applicant, in fact, was requesting the court to give a declaratory judgement.

The Court therefore, turned down the application to issue the warrant of prohibitory injunction against the PSC.

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