Court turns down judicial review case because of non-observance of 10-day rule

The Court decided on 13 August, 2015 in Corinne Ward -v- Foundation for Medical Services and the Chief Government Medical Officer that it could not proceed with the case because the plaintiff had failed to notify the defendants with a judicial act 10 days prior to filing the lawsuit.

In her application the plaintiff asked the court to find that the adjudicating board for the post of Director of Nursing, acted in a discriminatory fashion. Ms Ward asked the court to order the defendants to reconsider her application as Director Nursing at Mater Dei Hospital and also to condemn them to pay the damages she suffered.

The Chief Medical Officer replied that the action was invalid because they were not notified 10 days before the action as prescribed by Article 460 of the Code of Organisation and Civil Procedure. With regard to the merits of the case the Foundation had organised the call but was not involved in the choice of the candidate. The Foundation reply also involved Article 460. With regard to the call for applications, the Foundation was of the opinion that the adjudication board acted properly and decided within its parameters.

Mr Justice Joseph Micallef analysed the background of the case, in which the plaintiff complained about how the adjudication board had treated her application, described as abusive and discriminatory. The board was composed of four members, who received 10 applications. In the interview with Ms Ward, the board asked for some clarification. Ms Ward replied that she was not satisfied with the requisites of the call. She was later informed that she did not have the necessary qualifications to apply for the job. The plaintiff protested and then wrote to the Ombudsman. On 14 March, 2013, the plaintiff filed a judicial letter asking the defendants to review her application and then on 18 March she filed the court case.

The Court pointed out that both defendants quoted Article 460, since the action was not preceded by a judicial act 10 days before it was filed. Article 460(1) states: 

“(1) 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 ten 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.”

Subarticle 2 lists a number of instances when the 10 days notice is not required, but none of these applies to this particular case. Mr Justice Micallef held that since this article’s introduction in 1981, the court applied that actions against the government or its entities have to be pre advised at least 10 days before the action is filed.

The court held in its judgement that this measure limits one’s right to make a claim against the government and as such must be given a restrictive interpretation, in order not to restrict further the public’s right to file actions against public authorities.

This procedural privilege is one of public order and therefore cannot be renounced by the public authorities and may be raised by the court itself. The intention is to allow the government and public entities to be able to defend themselves adequately and should not be used to prohibit the public from taking legal action. On the other hand, whoever intends to file an action against the public administration should abide by this article of law.

In this particular case, the case was not only filed but accepted by the Registrar of Court and the case was assigned to a judge. This should not mean that the acts of the case are valid at law. Mr Justice Micallef said there was a time when in such cases the lawsuit was not accepted by the Registrar. 

In the judgement, the court made reference to the plaintiff’s legal arguments that although the 10 days did not lapse when the case was filed, this had to be filed because if she waited further her action would have been time barred. The court rejected this argument by saying that this issue between the parties commenced in September 2012, giving her ample time to plan and take the necessary actions, including filing a judicial act against the defendants.

Mr Justice Micallef moved to dismiss the case, by upholding the defendants’ plea.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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