The parties to a case cannot file another action if they are identical. This was held in Malta Association of Professional Engineers v Bord tal-Professjoni tal-Inġinerija et on 26 April 2022, by the First Hall of the Civil Court presided by Mr. Justice Robert Mangion.
The members of the Profession of Engineers Board raised the plea that this action is identical of a previous action. The Court delivered its judgement limited to this plea.
The Defendants held that the plea of lis alibi pendens was raised since there is another lawsuit in the same names but before Judge Miriam Hayman. This plea refers to Article 792 of the Code of Organisation and Civil Procedure.
The Association disagreed with this plea but proposed that the two actions be heard together.
The Court quoted from the Italian jurist Simone who wrote in his book Diritto Processuale Civile explained that the plea takes place when two identical actions are presented before different judges and therefore the law prescribes that one should be eliminated.
In Anatoli Reznikov et v Nikolai A. Kotivov pro et noe decided by the Commercial Court on 24 March 1994 which held:
“The plea is somewhat parallel with the plea of exceptio rei judicatæ. Just as a suit cannot be decided upon more than once, so also there cannot be at the same time more than one judicial relation between the same persons on the same merit, because this would imply a plurality of decisions on the same issue.
The effect of the plea of litis pendentia in the words of section 792 of the Code of Organization and Civil Procedure is that the court before which the second action is brought may order the suit to be remitted to the first court.
In fact, doctrine and case law in the matter are to the effect that it is in fact mandatory for the court to declare its own incompetence ex officio if such plea is founded, in spite of the use of the word ‘may’ in the said section quoted herein.
The essential condition for this plea is the identity of the two actions which results from the identity of all the elements thereof, i.e. the parties, the subject matter and the case of the demand.”
This plea may be raised ex officio by the Court if it learns of the second action since this is an issue of a public order. The element of this plea is that the parties to the two cases are the same, the subject matter of both cases are the same and the third element the claims of both cases are identical.
As to the parties to the cases, the Court confirmed that they are identical. The Court had admitted MCAST to intervene in statu et terminis.
Our longstanding jurisprudence shows that when a party intervenes in a lawsuit, it would not actually be a party. This was held in the Court of Appeal on 7 May 2014 in Ruth Brincat v Awtorita’ tal-Ippjanar and Magri et v Market Intelligence Services Co. Ltd. decided on 20 May 2009.
Therefore, although MCAST was allowed to intervene, the Parties of this case is identical to the other.
As to whether the two actions have the same subject matter, this means that the merit of the two cases must be identical and not simply similar.
Neither does this mean that the outcome of one case may have an effect on the second case.
When the subject matter is identical, then if one case is decided before the other then, in the second one could raise the res judicata plea, meaning that the dispute has been already decided.
In the other case before Judge Miriam Hayman, the case is with regard the fact that the Plaintiffs were not consulted on new legislation on the Engineers’ Act and therefore, in breach of the Proportionality Test Before Adoption of the New Regulation of Professions Act, 2020.
However, in this case is with regard to the same breach of the same Act, after there were changes to the MCAST engineering course.
Therefore, the two actions concern the lack of consultation as required by law. However, the lack of consultation is in regard two separate issues. One is on the Engineers Act, the other is on the engineering court at MCAST.
There is a connection between the two, but they are not identical. On this ground the Court rejected the plea and ordered that the case to continue.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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