Law & Practice Dec/2015

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ISSUE 32 | DECEMBER 2015

POSITIVE OBLIGATIONS | JUDICIAL SHIELDING & WINDING UP PROCEDURES | AGRICULTURAL LEASES: SALIENT ARTICLES AND JUDGEMENTS

editorial 15

Dear Colleagues and Friends,

Welcome to another edition of the Law & Practice!

As you might be aware, February saw the election of the new Committee for the years 2015 – 2017 and also the change in presidency from Dr. Reuben Balzan to Dr. George Hyzler. On behalf of the legal community, I would like to thank the outgoing Committee Members, especially Dr. Reuben Balzan for his constant work throughout the 16 years he spent as a member of the Chamber, during which period he occupied the position of treasurer, secretary general and the last 4 years as President of the Chamber. I would like to take this opportunity to augur Dr. Geroge Hyzler, together with the new incoming Committee a term full of work and activities for the benefit of us all.

As this edition testifies, the Chamber of Advocates and the Malta Law Academy have been very busy throughout these past months with the organisation of numerous activities for the legal community. The work doesn’t stop here and in fact the Chamber of Advocates and the Malta Law Academy are already planning other activities for the coming months. Naturally, this work cannot be executed without the great work of Dr. Marie Therese Cuschieri and Mrs. Carmen Guillaumier, for which we thank them.

Finally, I want to remind you that the Chamber of Advocates wants to remain in constant contact with its members and to this end it sends regular email communications to its members. I encourage those members who do not receive these emails to forward their updated details, including mobile phone numbers and email address, to the executive secretary on info@avukati.org.

Have a Great time!

Leonard

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03 from The President Dr. George Hyzler

04 Update

A roundup of events by the Chamber of Advocates

11 Lectures in Commercial and Consumer Law Dr. David Fabri

15 Drink driving with particular reference to Malta Magistrate Consuelo Scerri Herrera

27 Bolam, Bolitho and Baby George Gregory Buttigieg

35 What are the Presupposti Processuali in the light of a balance between legal theory and practical notion?

Dr Matthew Xuereb

BROUGHT TO YOU BY: The Chamber of Advocates of Malta, EDITOR: Dr. Leonard Caruana LL.D., M.A. (Fin. Serv) editor@avukati.org

The Chamber of Advocates of Malta Superior Courts, The Law Courts, Republic Street,Valletta, MALTA VLT2000 Telephone: +356 2124 8601 Email: info@avukati.org Web: www.avukati.org

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from The President Dr. George Hyzler

Dear Colleagues,

A new committee has recently been entrusted to manage the interests of our profession for the next two years. It includes members that have served in previous committees, ensuring continuity, as well some new faces that have brought new ideas and energy to the table. I believe our members have put together a very good team that is truly representative of our profession in today’s environment.

Allow me to take this opportunity to express my appreciation to the outgoing committee for all the good work. In particular I wish to single out and acknowledge the contribution of Reuben Balzan the immediate past president under whose watch the Chamber has made tremendous strides forward. We shall miss him in Committee as we shall miss former President Andrew Borg Cardona who this time round opted not to contest elections to the committee after long years of valuable service. I also wish to thank Leonard Caruana and his editorial team for the thankless task they have set themselves to, as well as to the contributors who I am sure will make this edition of Law and Practice yet another interesting one. We are in the process of revisiting the format and scope of this law magazine as we need to have a clearer idea of its purpose.

The new committee has set itself a number of targets foremost amongst which is that of making the Chamber more relevant to all practicing advocates and to society.

Over the years the profile of the practicing advocate has changed. Most young lawyers now join or establish partnerships, or take up employment with law-firms or with companies or non-legal firms. Most never set foot in a court room. It is a career choice, more of a life-choice really. Our numbers have grown exponentially; the number of female lawyers graduating from our university has by far exceeded that of male lawyers. Lawyers now tend to further their studies and specialise in one field or another, mostly due to

better opportunities as a direct result of our accession to the European Union.

The number of European lawyers practicing in Malta is also on the increase.

The underlying reasons for all these developments are various. There are growing opportunities in relatively new fields of law that have become mainstays of our economy. Gaming, aviation, maritime, funds, trusts, foundations, insurance and financial services in general to mention but a few. There are equally exciting openings in compliance, tax, corporate services, European Law. These are sectors that support the enormous changes the country has undergone. We have moved from a country that followed, to a country at the avant guarde in many fields. Other professions have moved into these areas with more enthusiasm and many employ lawyers for the legal work required.

I wish at this point to say a word to advocates that are employed, most of whom do not practice in court and particularly those employed with nonlegal firms. An advocate is an advocate irrespective of whether or not one practices in court and irrespective of whether or not one is employed.

Conditions of one’s employment cannot be used to shield oneself against the application of the body of rules of ethics that governs the profession and all lawyers indiscriminately. These are rules that distinguish our profession from other professions and that raise the bar.

I do not state this to imply that our profession is above others, though it is so in many respects, but I do so to remind you all that it is your “warrant” that allows you to practice and it is your warrant that allows you to call yourself an advocate and that subjects you to the rules of ethics. Not the doctorate or other degree obtained from a university, but the warrant.

I understand that lawyers that do not practice the profession in court may feel less inclined to be active members of the Chamber of Advocates. It is

therefore our intention to reach out further to those colleagues. Within the coming weeks we should be setting up special interest groups in various sectors that will act as the Chamber’s consultative arm for that sector; this should help us address the perceived divide as well as help us propose changes to the law and react better when changes are being put forward.

This brings me to share with you another concern. The Chamber has been in discussions with Government for a number of years on the enactment of the Lawyers’ Act. This should allow us to better regulate the profession and allow us better control on the issuance of the warrant to practice. We have not been successful so far as our interest to regulate the profession better has met with opposition by entities that have a vested interest in retaining the status quo. We shall try to reach agreement on the best way forward in the interest of the profession. This is a priority for us.

My third point is a direct appeal to all practitioners. To those that practice in court and to those that do not; to those who are employed and to those who are self-employed. I urge you to resist the idea that the profession is primarily a business. The legal profession does not respond well to rules of the world of business and lawyers cannot adopt an exclusively business forma mentis. There is nothing wrong or immoral in business, it simply does not sleep comfortably with the rules of our profession. Clients come to us for our assistance and not to buy a service that is subject to market forces. We have clients not customers. I feel strongly about this and those who have a problem with this would be welladvised to renounce to the warrant and in that way releasing oneself from the rules of ethics that burden us all.

The Chamber of Advocates is the ultimate custodian of the reputation of the profession and is intent on carrying out its duty to the best of its abilities.

I wish you all a good read.

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NEWS

update SOCIAL EVENTS St. Ivo lunch - held on Thursday 17th December 2014. last year’s annual event was held at La Nave Bistro, National Aquarium, Qawra. Patrons were treated to a scrumptious buffet lunch. The after party was then held at Cafe’ del Mar.

Lunch to honour the appointment of His Grace Mgr. Charles Scicluna as Archbishop of Malta – held on 26th may 2015. To honour the appointment of our colleague His Grace Mgr. Charles Scicluna as Archbishop of Malta, the Chamber of Advocates organised a lunch at the Phoenix Restaurant, Hotel Phoenicia, Floriana. His Grace graduated as Doctor of Laws from the University of Malta in 1984.

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Blood donation day – held on 12th March 2015 at the Law Courts. This event was part of the Chamber’s corporate social responsibility commitment to promote community values through activities that will benefit others; the blood donated can also help to save lives. The Chamber of Advocates was transformed to accommodate a number of beds, medical equipment, and a temporary medical room.

NEWS

update ACADEMIC EVENTS - MALTA LAW ACADEMY Preparing an application to the European Court of Human Rights - from formal and substantial admissibility to final decision - Thursday, 26th February 2015. a lecture delivered by Chief Justice Emeritus Dr. Vincent. A. De Gaetano at the Chamber of Advocates, Law Courts, Valletta.

Energy Performance Certificates (EPCs) – lecture held on the 27th February 2015 at the Chamber of Advocates and delivered by Dr Mario Caruana LL.D, legal advisor to the Buildings Regulation Office and Ing. Samuel Farrugia.

The Energy Performance Certificate (EPCs) is a requirement of the EU Directive, namely the Energy Performance of Buildings Directive (EPBD) and Maltese law, specifically the Energy Performance of Buildings Regulations (EPBR) of 2012 (LN 376/2012). The owner of a building must ensure that when buildings are constructed, sold or rented out, an EPC is shown to the prospective new buyer or tenant and handed over to the buyer

or new tenant on the date of entering the contract of promise of sale or rent agreement.

The briefing session outlined the legal

aspects of EPCs and to raise awareness with members of the Chamber of Advocates regarding the enforcement of these certificates.

Recent developments and challenges in consumer law and consumer protection in Malta and the EU - a conference held on the Friday, 6th February 2015 at the Vassalli Hall, Mediterranean Conference Centre, Valletta, chaired

by Dr. David Fabri LL.D. - Read the article for more info

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update ACADEMIC EVENTS - MALTA LAW ACADEMY References for a preliminary ruling before the Court of Justice of the EU – a lecture held on Wednesday 4th March 2015 at the Chamber of Advocates, which outlined the procedure to be adopted when affecting a reference to the CJEU. The lecture was delivered by Dr. Ivan Sammut LL.D. Guardianship – lecture delivered by Ms. Marilyn Spiteri, Registrar of the Guardianship Board on Wednesday 22nd April 2015 at the Chamber of Advocates.

20 years after the Companies Act 1995: company law and beyond, reflections and recent developments – Conference held at the University of Malta, Valletta campus, old University building on the 22nd May 2015. The conference was chaired by Dr. David Fabri, LL.D - Read the article for more info Ir-regolament Ewropew dwar is-Successjoni: Lectured delivered by Dr. Christian Falzon Scerri on Wednesday 1st July 2015. The lecture gave general information on the salient points of Regulation (EU) No. 650/2012 and the amendments to Maltese legislation which will enter into force in August 2015.

Brussels Recast: The presenters for this seminar, held on the 19th November 2015, were Dr Ivan Sammut and Dr Francesca Galea Cavalazzi. The seminar focused on the key changes introduced by the Brussels Recast Regulation in the areas of jurisdiction and recognition and enforcement of judgements as well as the areas where, following the Recast Regulation, uncertainty remains.

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EU Small Claims Procedure – lecture delivered by Dr. Ivan Sammut on Wednesday, 27th May 2015.The European Small Claims Procedure is intended to improve access to justice by simplifying cross-border small claims litigation in civil and commercial matters and reducing costs. “Small claims” are cases concerning sums under Eur 2000, excluding interest, expenses and disbursements (at the time when the claim form is received by the competent court).

Judgments delivered under this procedure are recognised and enforceable in the other member states without the need for a declaration of enforceability. The procedure is optional, offered as an alternative to the possibilities existing under the national laws of the member states. It became applicable as from 1st January 2009 in all EU Member States except Denmark.

International (Criminal and Human Rights) Law – A set of two lectures delivered by Dr. Chris Soler LL.D and covered topics. The first lecture was delivered on Wednesday 15th April 2015 and focussed on “Basic principles and substantive (core) crimes” whilst the second lecture was delivered on Friday 17th April 2015 and focussed on “Procedural issues and enforcement mechanisms”

Dr. David Fabri LL.D Dr David Fabri is the Head of the Commercial Law Department at the University of Malta, where he also co-ordinates the Masters programme in Financial Services. He has lectured and has written on consumer protection, financial services, business ethics and corporate law subjects on a regular basis since 1995. He serves as Secretary to the Board of Governors. For a number of years, he has been serving on the University Research Ethics Committee and on the Administrative Review Tribunal.

Lectures in Commercial and Consumer Law:

A Collaboration between the Department of Commercial Law, the Chamber of Advocates and the Malta Law Academy: Two interesting and topical Seminars:-

The active collaboration between the Department of Commercial Law, University of Malta, the Chamber of Advocates and the Malta Law Academy has yielded two interesting and topical Seminars held at the Mediterranean Conference Centre and the Old University of Malta respectively.

Recent developments and challenges in consumer law and consumer protection in Malta and the EU A half-day Conference on consumer law held on 6th February 2015.

On the 6 February 2015, a half-day conference was organized jointly by the Department of Commercial Law and the Chamber of Advocates which focussed on “Recent Developments and Challenges in Consumer Law in Malta and the EU�. Various different areas on consumer protection interest were explored by an excellent team of local speakers from the legal profession, experts in the respective subjects.

In his opening talk, Dr David Fabri (the Head of the Department) gave an extensive and provocative review of

recent challenges that consumers faced and how the law has reacted or has failed to react to safeguard the legitimate expectations of consumers.

The keynote speaker was Dr Tonio Borg, formerly EU Commissioner for Health and Consumer Affairs, who delivered an entertaining talk on his achievements and disappointments during his tenure as an EU Commissioner.

Dr Annalise Azzopardi provided an extensive analysis of the significance and implications of the recently published

Consumer Rights regulations which transposed a recent EU Directive and in particular how these regulations have changed Maltese law. Dr Antonio Ghio focussed on the issues which consumers faced when dealing in the Electronic Communications sector and examined relevant legal developments in this field.

Dr Conrad Portanier dealt with the proposed new Financial Services Ombudsman Scheme which government is committed to introduce later this year and set out a comparison with similar consumer arrangements overseas.

The last session was dedicated to a

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panel discussion on recent important local and EU consumer protection court cases which included a lively discussion on the controversial failure of Fantasy Tours and how this event adversely affected consumers. Dr Antoine Grima and Dr Lorna Cachia Mifsud led the discussion.

Dr Reuben Balzan, the then President of the Chamber, gave the closing address and thanked the speakers and the audience for making the event a success.

20 years after the Companies Act 1995: company law and beyond, reflections and recent developments - Half day seminar held on the 22nd May 2015.

The Department of Commercial Law at the University of Malta in conjunction with the Malta Law Academy of the Chamber of Advocates organised another afternoon seminar on the 22 May 2015. This time the venue was the Old University in St Paul’s Street, Valletta. This was the seventh in the series of successful collaborations

between the two bodies and the subject was the Companies Act 1995, twenty years later. This conference follows hot on the heels of the recent successful conference on developments in consumer law. The conference targeted law students, legal practitioners and members of the accounting and auditing professions, as well as academics in these fields.

As usual the line-up of speakers was impressive. The Conference was opened by an address from the Minister for Finance, Prof Edward Scicluna, himself an academic and whose Ministerial responsibilities include company law and financial services. In his introductory talk, David Fabri, Head of the Department, placed the Companies Act in its historical perspective and commented on interesting aspects of developments in the company law field during these past 50 years. The keynote speaker on this occasion was Judge Joseph Zammit McKeon who accepted to address the conference on landmark decisions taken by the Civil Court during these past years which have helped evolve company law principles beyond the

confines of the 1995 Act. Other contributors included the wellknown criminal sector lawyer, Joseph Giglio, who addressed the criminal liability of companies, a subject of ever increasing relevance. Dr Joseph Borg, former EU Commissioner, lecturer with the Department and one of the drafters of the Act, analysed the local experience involving the company recovery proceedings and proposed possible reforms. Richard Camilleri, who lectures on competition law and the Commercial Code with the Department, analysed important aspects of the inter-play between company law and competition law. Kris Borg, who also lectures on company and commercial law, attempted to answer the question of whether we had done enough to protect the interests of minority shareholders. The event was closed by the recently appointed President of the Chamber, George Hyzler.

Magistrate Consuelo Scerri Herrera obtained her Diploma Notary Public University of Malta in 1988, her Doctorate of Laws from the University of Malta in 1999 and her Diploma in Canonical Marriage Cases Jurisprudence and Procedure from the Ecclesiastical Tribunals of Malta in 1998.

She was called to the bench as Magistrate in May 1997. She has presided over cases both of a criminal and civil nature and at present is assigned to do both.

Drink driving with particular reference to Malta Alcohol has a euphoric effect that can affect drivers to think that their driving is good when in reality it will not be. In fact drivers under such effect can take chances that would not be taken in normal circumstances and the effect of such rash decisions could have a disastrous or fatal end. Studies have shown that like many Europeans, we Maltese are aware of what could happen as a result of drink driving but still take the risk and drive under such condition rather than take a taxi to our next destination, hoping that tragedy does not befall them.There is no doubt that alcohol effects our reflexes, vision and judgement and that is why it is dangerous to drive under such an influence.This is a pity because drink drivers cause a real danger not only to themselves but also to the passengers that they have with them and also to other cars and passer bys who happen to be on the road at the same time in the same place.

Our laws relating to Traffic Law as listed in Chapter 65 of the laws of Malta have always covered the topic of drink driving ever since its introduction in the first part of the century. With the passage of time the executive police have embraced different means to quantify this breach at law. The methods used vary according to the latest technology that is available locally. One of the relatively recent additions to our national system was the introduction of the breathalyser equipment which was introduced into our national laws by Act VI of 1998 as subsequently amended by Act XXIII of the year 2000,

by Act VII of the year 2010 and then again by Act V of the year 2011.

The legislators sought to introduce the breathalyser to try and stop or rather

reduce people driving under the influence of alcohol. It is both a preventive measure and a scientific way at calculating what the law has been sanctioning for past decades that is driving under the influence of alcohol.

The test involves taking a sample of breath. This is done by asking the driver to blow a steady and deep breath into a disposable pipe. The liquid crystal display on which the alcohol level will be shown on the apparatus will be visible to the person taking the test at all times. The alcohol readings will be printed and signed by the person taking the test and the police official who conducted the test. The Police then give a copy of the result to the driver and keep a copy for themselves in case they are going to proceed with a prosecution in court. This is carried out at the Police Headquarters in Floriana or at the Victoria Police Station in Gozo at any time of the day, seven days a week. Such place is to be indicated in case of change by means of a legal notice. Usually the Duty officer on charge will be called by the traffic or district police asking him to carry out a test on a driver who would normally have been stopped in connection with traffic offences. As will be explained later on in my article a blood or urine sample or both can also be requested in which case such latter tests are carried out under medical supervision.

As can be evidenced from the judgement in the names Il-Pulizija vs Etienne Turner1 it is imperative that the breath alcohol test record is signed by the prosecuting officer who took the test and taken in a laboratory approved by the Honourable Minister and published in the government gazette2 for non observance of this procedure

would lead to an acquittal as happened in this case. The Court in this case held that “Illi mill-provi prodotti l-breath alcohol test record huwa monk u ghalkemm m’ghandux il-firma tal-opertur tieghu lanqas ma jirrizulta li ttiehed fil-laboratorju forensiku”. (reference can also be made to the judgment in the names IlPulizija vs George Seguna)3 Infact in the judgment delivered in the names Pulizija vs Aldo Fenech the Court disregarded the breath alcohol test when deciding on the case because it felt that “Dan id-dokument mhux wiehed komplet: stramb ukoll il-fatt li tidher li hemm il-firma t l-akkuzat fuq ittape, pero’ l-informazzjoni l-ohra kollha giet mistura anke jekk wiehed jara l-istess dokument kontra d-dawl. Il-Qorti ghalhekk tqis l-istess dokument alterat u mhux komplet u ma tqisx li fuq tali prova in vista li zgur li ma jikkostitwix l-ahjar prova li ghandha ssib htija fuq l-istess”.

Article 15A of Chapter 65 of the Laws of Malta specifically provides that:No person shall drive or attempt to drive or be in charge of a motor vehicle or other vehicle on a road or other public place if he is unfit to drive through drink or drugs and sub section (2) explains that for the purposes of this article, a person shall be deemed to be unfit to drive if his ability to drive properly is for the time being impaired.Thus we immediately come across a sweeping broad statement that no one should be on the road in control of a vehicle once he is under the influence of alcohol.4 In fact in the judgment given in the names Il-Pulizija vs Francis Pace5 the court held that “biex jigi deciz mill-Qorti jekk persuna kinitx qed issuq meta lkapacita taghha li ssuq sew (kienet) ghal

Delivered by the Criminal Court of Appeal on the 6th June 2003.

Article 15E (5) of Chapter 65 of the laws of Malta.

Delivered by the Criminal Court of Appeal on the 23rd December 2003.

4 Article 15 B of Chapter 65 of the laws of Malta.

5 Decided by the Criminal Court of Appeal on the 2nd September 1999.

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xi hin imnaqqsa minhabba xorb jew drogi bi ksur tal-Artikolu 15A wiehed jista’ jiehu in konsiderazzjoni provi ohra bhal ma huma l-komportament u kundizzjoni fizika tas-sewwieq.” Should the driver be charged with this offence as stipulated in article 15A, it is not necessary that the driver is found to be over the prescribed level of alcohol.

In the judgment delivered in the names Il-Pulizija vs Anthony Muscat6 it was explained that “Fil-kaz tal-Artikolu 15B irreat, kif inghad hu marbut ma’ livell partikolari ta’ alcohol - fis-sens li appena jinqabes dak il-limitu hemm il-presunzjoni juris et de jure li dak li jkun ma kienx f’kundizzjoni li jsuq minhabba xorb - filkaz tal-Artikolu 15A (1) il-legislatur ma ppreskriva ebda livell partikolari ta’ alkohol fis-sistema tas-sewwieq, b’mod li anke b’livell anqas minn dak ‘preskritt’ tista’ tinstab htija taht dan l-artikolu jekk oggettivament ikun jirrizulta li s-sewwieq ma kienx f’kundizzjoni li jsuq minhabba xorb (jew drogi). Fi kliem iehor persuna li tkun akkuzata taht l-Artikolu 15B tista’ ma tinstabx hatja taht dana l-artikolu izda minflok tinstab hatja taht l-Artikolu 15A (1).”

This thus brings us to Article 15B of Chapter 65 of the laws of Malta which provides the following:“No person shall drive, attempt to drive or be in charge of a motor vehicle or other vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit”.

Thus one has to examine whether such driver consumed enough alcohol that the proportion of his breath, blood or urine exceeds the prescribed limit. The legal limit being 35 milligrams per 100 millilitres of breath, 80 milligrams per 100 millilitres of blood or 107 milligrams per 100 millilitres.7

However despite the above, the law provides for a further amount of alcohol that can be consumed before the driver can be convicted of an offence under this law. The proportion of alcohol in the breath, blood or urine can exceed the prescribed limit by eight

microgrammes or more in the breath or by twenty milligrammes or more in the blood or by twenty-three milligrammes or more in urine.8

It goes without saying that it is very difficult to equate 35 mg with an exact amount of alcohol whether they are beer pints, whiskey tots or glasses of wine. Just one drink could push you over the legal limit, even if you feel unaffected. Amounts vary according to the percentage of alcohol in the drink, and the consumer’s metabolism, physical fitness, fat distribution, liver function and age. Thus the level of alcohol intake that can be recorded as above the prescribed limit varies from one person to another. On average, it takes about one hour for your body to break down one unit of alcohol.

However, this can vary depending on: • your weight, • whether you’re male or female, • your age, • how quickly or slowly your body turns food into energy (your metabolism), • your stress levels, • how much food you have eaten, • the type and strength of the alcohol, and • whether you’re taking medication and, if so, what type.

It can also take longer if your liver isn’t working normally.

The current law allows the authorities the possibility, through a legal notice9 , to change the country’s maximum blood alcohol content, which currently stands as the European Union’s most generous at 80mg of alcohol per 100ml of blood – a limit Malta shares with the UK and Ireland.10

It should be pointed out that the prescribed legal limit for alcohol consumption whilst driving is rather generous in spite the fact that a recent EU survey showed how a startling 91 per cent of the Maltese population does not know the legal limit beyond which drink driving is punishable by law.

The percentage is the highest among EU member states and was followed by

Greece (76 per cent) and Romania (74 per cent).

Way back in the year 2010 Agenzija Sedqa had called on the authorities to review existing legislation that establishes the 80mg limit, and recommended that the limit be lowered to 50mg, as it put forward its anti-drink driving campaign on all the local media.

A recent report drawn up by the British medical regulator, the National Institute for Health and Clinical Guidelines (NICE), has advised that legal limits for drinking and driving in the UK should be reduced from 80mg to 50mg.

Single alcoholic drink, the report found, triples a driver’s risk of dying in a vehicle crash, and a small beer or glass of wine can increase a driver’s blood-alcohol level by more than half the legal limit, a report commissioned recently by the British government has found.

The study found that even at the onedrink level, the chances of a fatal accident are three times higher than in a driver who has drunk no alcohol at all. That is half the risk of the 80mg drink-drive limit, which increases the chances of a fatal crash by at least six times. In drivers who are just over the limit, at up to 100mg blood alcohol level, the risk is 11 times higher. The exponential increase in the danger for drivers who have drunk a relatively small amount of alcohol is spelt out in the report.

In younger people the effects are particularly acute, who, according to the NICE report,11 are “less experienced drivers, are immature and have a lower tolerance to alcohol than older people”.

Young people aged between 18 and 25 are more likely to die in road accidents than from any other cause.

In fact, when the 50mg limit was introduced in 15 countries in Europe, it resulted in an 11.5 per cent fall in fatal drink-driving accidents involving 18 to 25-year-olds, the group at highest risk.

Delivered by the Criminal Court of Appeal on the 8th June 2007.

Article 15 I of Chapter 65 of the laws of Malta.

8 Article 15H of Chapter 65 of the laws of Malta.

9 Article 15B (2) of Chapter 65 of the laws of Malta.

10 http://www.independent.com.mt/articles/2010-08-01/news/new-legislation-provides-for-crackdown-on-drink-driving-278176/ 11 Review of effectiveness of laws limiting blood alcohol concentration levels to reduce alcohol-related road injuries and deaths Centre for Public Health Excellence NICE Final report , March 2010.

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The highest per capita alcohol consumption in the world is seen in Europe. In fact harmful and hazardous alcohol consumption is the third largest risk factor for ill health in the EU, responsible for 195,000 deaths each year and accounting for 12 per cent of male and two per cent of female premature mortality. The estimated economic cost to the EU is in the region of €125 billion per year.12

Any amount of alcohol affects your judgment and your ability to drive safely.

You may not notice the effects but even a small amount of alcohol can: • reduce your co-ordination, • slow down your reactions, • reduce your field of vision, and • affect how you judge speed, distance and risk.

Alcohol can also make you overconfident. You’re likely to take risks, creating dangerous situations for other people, as well as yourself.

The most common question that is often asked in Malta is when can a Police officer subject a driver to such a test and the answer comes out from the law which states that a police officer can ask a driver to give a sample if he reasonably suspects that: (a) a person is driving or attempting to drive or is in charge of a motor vehicle or other vehicle on a road or other public place and has alcohol in his body or has committed an offence against the provisions of this Ordinance or against any regulations made thereunder whilst the motor vehicle or other vehicle was in motion; or (b) a person has been driving or attempting to drive or has been in charge of a motor vehicle or other vehicle on a road or other public place with alcohol in his body and that that person still has alcohol in his body; or (c) a person has been driving or attempting to drive or has been in charge of a motor vehicle or other vehicle on a road or other public place and has committed an offence against the provisions of this Ordinance or against any regulations made thereunder whilst the motor vehicle or other vehicle was in motion; or (d) a person was driving or was attempting to drive or was in charge of a motor vehicle or other vehicle on a road or other public place when that motor vehicle or other vehicle was involved in an accident.13 12 13

ibid Decided by the Criminal Court of Appeal on the 20th November 2000.

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Breathalyser Charges

Arraigned

Guilty

Acquitted

Sub-Judice

235

70

32

133

99

192

2013 2014 2015 (Jan - Mar) Total

Source Principal Citations Office (PCO).

222 39

496

124 11

205

In the judgement in the names ilPulizija vs Carmelo Rapinett14 the court held that “Is-suspett ragonevoli msemmi fl-Artikoli 15C tal-Kap 65 hu rikjest mil-ligi unikament sabiex l-ufficjal tal-pulizija jkun jista jehtieg (may require fit-test Ingliz) li persuna taghti kampjun tan-nifs ghat-test tan-nifs, ghat-test (ara d-definizzjoni ta’ test tan-nifs fl-Artikolu 151(I) u mhux ghall-finijiet talammissibilita bhala prova tar-rizultat tal-analizi tal-kampjuni tan-nifs mehud skond l-Artikolu 15E. In-nuqqas ta’ ‘suspett ragonevoli’ imsemmi fl-artikolu 15C igib bhala konsegwenza li l-ufficjal tal-pulizija ma jkunx jista’ legalment jarresta lill-persuna in kwistjoni skond ilparagrafu (b) ta’ l-artikolu 15D jekk din il-persuna tonqos milli taghti kampjun tan-nifs ghat-test tan-nifs u dan ghassempici raguni li f’tali sitwazzjoni (cioe’ meta m’hemmx is-‘suspett ragonevoli’ imsemmi fl-Artikolu 15C) dik il-persuna ma tkunx mehtiega taghti tali kampjun ....”

In fact as was indicated in the judgment in the name Il-Pulizija vs Emmanuel Camilleri15 “biex jigi radikat dan issuspett ragonevoli l-ufficjal koncernat jista’ jiehu anke in konsiderazzjoni dak li jkun qallu haddiehor.”

Should the Police be of the opinion that a person has committed an offence in relation to drink driving, such police officer may require such person to provide a breath sample for analysis by means of the approved device, or to provide a specimen of blood and urine for laboratory analysis which shall take place at an approved laboratory.

However before doing so the same police officer must explain to the

Article 15C of Chapter 65 of the laws of Malta.

Delivered by the Criminal Court of Appeal on the 20th April 1999.

16 Article 15E (4) of Chapter 65 of the laws of Malta.

17 Decided by the Criminal Court of Appeal on the 28th April 2000.

18 Article 15D of Chapter 65 of the laws of Malta.

14 15

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37 22

person that failure or refusal to take such a test would be guilty to an offence and unless the contrary is proved it shall be presumed that the proportion of alcohol in that person’s blood exceeds the prescribed limit.16 This was also the line taken in the judgment Il-Pulizija vs Carmelo Briffa17 wherein the Court held:- “Illi dak li irrizulta lil din il-Qorti minn dak li semghet hi, jidher, kif sewwa qed jilmenta l-appellant, li f’dan l-incident hadd millufficjali tal-pulizija qatt ma kien avzah li n-nuqqas jew rifjut tieghu li joqghod ghalltest tan-nifs kien fih innifsu reat. Anke jekk ghall-grazzja tal-argument, hu tassew kien irrifjuta li jaghmlu xorta mill-provi ma jirrizultax li hu qatt kien gie avzat li dak irrifjut tieghu kien jikkostitwixxi r-reat li hu akkuzat bih taht is-sitt akkuza. L-arikolu 15D (b) tal-Kap 65 fuq kwotat testwalment jirrikjedi kjarament li sabiex dak ir-rifjut ikun jista’ jigi meqjus bhal reat fih innifsu, irid l-ewwel ikun hemm dan lavviz f’dan is-sens mill-ufficcjal tal-pulizija u minkejja dan l-avviz dak li jkun jibqa’ jirrifjuta li joqghod ghal dan it-test tannifs”.

In fact the law also allows a Police officer to arrest a person if one of the following two situations arise. If: “(a) as a result of a breath test the Police officer reasonably suspects that the proportion of alcohol in that person’s blood exceeds the prescribed limit; or (b) that person fails to provide a specimen of breath for a breath test when required to do so in pursuance of the provisions of article 15C provided that such person had been warned that the failure or refusal to comply with such a request was an offence.”18

In the judgment in the names Il-Pulizija vs Anthony Cutajar19 it was established that “l-Artikolu 15D tal-Kap 65 jipprovdi li l-pulizija jistghu jarrestaw persuna li tonqos illi taghti kampjun tannifs mehtieg (skond l-Artikolu 15C) kemm-il darba dik il-persuna tkun giet avzata li n-nuqqas jew ir-rifjut li taghti dak il-kampjun tan-nifs hu reat. Tali twissija, izda hi mehtiega biss sabiex il-pulizija jkunu jistghu jezercitaw is-setgha taghhom li jarrestaw fic-cirkostanzi kkontemplati flimsemmi Artikolu 15D (b).”

In fact in the judgment given in the names Il-Pulizija vs Emanuel Camilleri20 it was held that:- “It- twissija li n-nuqqas jew rifjut li wiehed jaghti kampjun tan-nifs hu reat, hi mehtiega biss sabiex il-pulizija tkun tista’ tarresta li minn hekk jonqos milli jaghti dak il-kampjun ghat-test tan-nifs (mhux ghall-analizi) u dan skond l-Artikolu 15D (b). Ghall-finijiet tar-reat kontemplat fl-Artikolu 15E (4) ebda twissija mhi mehtiega.”

However, the law also provides that the person asked to take a test can bring a defence to prove that his failure to provide a specimen was due to a physical or mental incapacity to provide it or because its provision would entail a substantial risk to his health.21

In the judgment delivered in the names Il-Pulizija vs Joseph Bonnici22 the court explained the term physical or mental incapacity as an incapacity “li trid tezisti indipendentement mill-ansjeta dovuta ghal fatt li dik il-persuna tkun involuta f’incident awtomobilistiku.” In the judgment in the names Il-Pulizija vs Marlon Montebello23 it was stated that “kif gie ritenut f’diversi sentenzi Inglizi in materja ‘normally expert medical evidence of the physical or mental incapacity to provide the specimen is required to support the defence and demonstrate the existence of the necessary causative link between the incapacity and the failure to provide (Blackstone Criminal Practice – 2000,

Blackstone Press Limited (London) 2000 p 378) l-inkapacita fizika ma kinitx wahda assoluta izda wahda relattiva dipendenti fuq l-ansjeta’ dovuta ghall-fatt li kien habat bil-karozza ta’ missieru.”

As was reiterated in the judgment in the names Il-Pulizija vs Claire Falzon24 “Il-fatt li persuna ma tkunx tista tonfoh tajjeb minhabba l-istat ta’ tossikazzjoni li tkun fiha, jew minhabba listat ta’ ecitament li jahkima tkun habtet jew ghax tkun giet arrestata mill-pulizija ma jammontax ghall-inkapacita fizika jew mentali li tezoneraha ghall finijiet tas-sub Artikolu (4) tal-Artikolu 15E tal-Kap 65, b’mod li f’kaz simili ghandu jigi ritenut li jkun hemm ‘nuqqas li wiehed jaghti lkampjun tan-nifs kif rikjest bil-ligi (P vs Joseph Bonnici)”.25 A person required to provide a specimen of breath or body fluid and who consents to such procedure may be detained by the Police until such person provides the necessary

Decided by the Criminal Court of Appeal on the 2nd September 1999.

Decided by the Criminal Court of Appeal on the 30th April 1999.

21 Article 15E (4) proviso of Chapter 65 of the laws of Malta.

22 Decided by the Criminal Court of Appeal on the 15th September 2000.

23 Decided by the Criminal Court of Appeal on the 9th February 2001.

24 Decided by the Criminal Court of Appeal on the 5th March 2001.

25 Ibid 19 20

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specimen or until the person is no longer a danger to himself or to others.26 Whereas a person required to provide a specimen of breath, blood or urine may be detained by the Police until it appears to the Police that such person is fit to drive.27 This is done so that no one under the influence of alcohol or drugs will be allowed on the road – a safety precaution measure.

There is no doubt that a vehicle driven by an intoxicated person is a lethal weapon. Hence the law deals with such an offence as a crime and not as a contravention. As provided in the criminal code penalties for crimes include imprisonment. For a first conviction on drink driving the offence carries a punishment to a fine of of not less than one thousand and two hundred euro (€1,200) or to imprisonment not exceeding 3 months or to both such fine and imprisonment.

On a second or subsequent conviction to a fine of not less than two thousand three hundred and twenty nine euro and thirty seven cents (€2,329.37) or to imprisonment not exceeding six months or to both such fine and imprisonment.

In addition the court shall disqualify the offender from holding or obtaining a driving license in the case of a first conviction for a period of not less than 6 months and in the case of a second conviction for a period of not less than one year.28

It must be pointed out at this stage that should the person found to be driving over the prescribed limit be involved in a traffic accident, his motor insurance policy will not cover him to make good for any damages that the driver could have caused. He may eventually face a civil case, besides prosecution from the police for the criminal wrong, whereby the victim is demanding thousand of euro especially in the case of a fatality or disabilities of a permanent nature, in which case the driver would have to pay for such damages.

In conclusion I thought it would be interesting to publish the statistics with

regards to criminal arraignments regarding this offence.

It is to be noted that in the above cited cases no one was sentenced to an effective prison term.

A survey carried out by Malta Today in April 2010 revealed the following with regards to drink driving that only 1% of the population know the legal drinkdriving limit, 26% of the population have more than five drinks a week, 10% of the population have more than 10 drinks a week, 29% of the population abstained from alcohol over past year, 17% of the population drink on a daily basis. Thus from such results it appears that the problem is rather severe and should be addressed in a stricter fashion. Perhaps the time has come that as happened in Britain random testing should be introduced and thus I am sure that we would have more arraignments and certainly more awareness to this acute problem.

It is my humble opinion that in this case compliance with the law means safety.

It is a real pity to be told that in order for university students to be able to enjoy themselves at social gatherings organised by fellow students with each other’s company, the party has to be laden with alcohol. In fact a look at the name given to such parties like ‘Shooters with the Tutors’, ‘Archoholics’ and the ‘Aftermath’ say it all. Despite being the trend, this is unacceptable in my opinion and a thorough campaign against all this heavy drinking should immediately be put in motion so as to avoid any consequent tragic fatalities as a result of all this drinking when subsequent driving back at the end of the party. I take this opportunity to recommend to all the drinkers reading this article that it is better to take a taxi home rather than take the courageous risk of driving under the influence of alcohol since such a risk could turn out to be either very costly or worse still fatal to oneself or to others. Be sensible do not drink and drive. Take a cab or use a designated driver system.

Article 15F proviso of Chapter 65 of the laws of Malta.

Article 15G proviso of Chapter 65 of the laws of Malta.

28 Article 15H proviso of Chapter 65 of the laws of Malta.

26 27

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Saman Bugeja

The Junior Chamber of Advocates

The JCA has been a beehive of activity in the past months.

A historical milestone was reached when in February, a delegation composed of Saman Bugeja, President of the Junior Chamber, and Matthew Xuereb, Projects Manager, travelled to Rome and met with I Rappresentanti Degli studenti di Giurisprudenza-La Sapienza. The visit was a fruitful one and future collaborations with our Italian Counterparts are on the agenda.

Apart from this, the JCA organised numerous seminars for the benefit of its’ members. Topics ranged from the

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correlation between Tort Law and Fundamental Human Rights, the salient features of the Law of Civil Procedure, the on going law reform and a seminar dealing with what Law firms want when seeking to employ students. The JCA also organised a seminar dealing with the Warrant exam which law students must sit for in order to practice as advocates in the law courts.

The JCA also continued with its Philanthropic mission and donated â‚Ź500 to Richmond Foundation. The monies were collected after a Football Tournament and donations received during a seminar. The JCA is eager to

continue in its Philanthropic activities and is planning to organise yet another Football Tournament this September. After last years success we urge those law firms with a Football team or those Advocates with a passion for the sport to participate for a good cause.

In April 2015 the JCA held its elections and a new executive was elected. The new executive committee is composed of Mr. Saman Bugeja as President, Mr. Matthew Xuereb as Vice President, Mr. Paul Caruana Turner as Public Relations officer, Ms. Ruth Ellul as Projects Manager, Ms. Maria Camilleri as Accademic Officer, Ms. Ria Micallef as Secretary general and Ms. Rose Galea Testaferrata as Financial Officer. For the post of Observer, the JCA have appointed Ms. Rebecca Mercieca.

Finally the JCA has recently embarked on an ambitious collaboration with the Malta Model United Nations Society to organise a Model United Nations Conference in Malta. This will be held between the 18th and the 20th of September. Preparations are already well underway and delegates from as far as the United States and Uzbekistan have already applied. We invite those law firms interested in supporting the event to contact the JCA or the Malta Model United Nations Society.

The JCA has numerous events lined up and it predicts this upcoming year to be even more successful than the previous years.

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PROMOTIONAL FEATURE

Posting of workers

Dr. Ann Bugeja Dr Bugeja joined CSB Advocates in January 2011 and is actively involved in advising a wide spectrum of corporate clients with their employment law needs.

The number of posted workers in the EU is currently estimated to be 1.2 million which amounts to less than 1% of the EU working age population.The limited amount of people who in fact participate in posting is due to many factors such as unawareness, bureaucracy and a general unwillingness to relocate.

WHO IS A POSTED WORKER? According to the Posting of Workers Directive 96/71/EC, which was adopted in 1996 and has been in force since December 1999, a posted worker is a person who, on behalf of the employer, is sent for a limited period of time to carry out his/her work in the territory of an EU Member State other than the State in which s/he normally works.

Posted workers do not include migrant workers who go to another EU Member State to seek work and are employed there, but it includes those employees who are normally employed in one EU State (“the posting State”) and decide to work temporarily in another EU State (“the host State”).

AREAS AND RULES The mentioned EU Directive covers employees being sent, for a set period of time, to another Member State in three situations:

• When an employer posts a worker to another Member States on his/her own account and under his/her direction, under a contract which the employer has concluded with the party in the State for whom the services are intended; • When an employer posts a worker to an establishment or to an undertaking owned by the same group of companies, but which is based in the territory of another EU Member State; • When a worker is posted through an agreement between an employer and a recruitment agency.

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The employment relationship between the employer and the posted employee must be maintained during the whole period of posting.

POSTED WORKERS’ RIGHTS The Directive establishes a core of mandatory rules regarding the terms and conditions of employment which must be applied to posted workers which includes guarantying that their rights and working conditions, such as, amongst other, maximum work periods and minimum rest periods, minimum rates of pay, health, safety and hygiene at work, protected throughout the EU and avoiding “social dumping” where foreign service providers can undercut local service providers because their labor standards are lower.

The idea is that where a Member State has certain minimum terms and conditions of employment, these must also apply to workers posted to that State. However, the employer is not prevented from applying working conditions better than the ones applied in the host State.

TAXATION It is a common tax principle that tax on employment income is paid in the country in which the income is earned.

However, remuneration derived by a resident of an EU Member State in respect of employment exercised in another EU Member State is taxable only in the former State if:

• the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the fiscal year concerned; and • the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and • the remuneration is not borne by a

permanent establishment which the employer has in the other State.

SOCIAL SECURITY As a general principle, under EU Legislation, the social security scheme applicable to posted workers is that established by the legislation of the host State.

EU Legislation allows posted workers to continue, for a period up to two years to pay social security contribution in the posting State by asking for the issuance of the A1 certificate. This certificate has to be submitted to the authority of the host State in order for the posted worker to be able to avail of the social security benefits in the host State without directly contributing to the social welfare system of that State.

Regardless of the A1 certificate, some A typical ‘posting’ situation is as follows: 1. an employee is already employed in Malta (“the posting State”) with a local company; 2. the company decides to post the employee to another EU State (“the host State”) and an agreement is reached in this regard; 3. the authorities (labour, immigration, tax and social security, amongst other) of the host State are notified of the posting; 4. the posted worker is authorised to work in the host State (depending on the Member State and the nationality of the posted worker) and is provided with tax details; 5. the posted worker can commence work.

countries have obligatory employers’ liability insurance which the employer must undertake to.

WHERE TO NOW? The EU is currently in negotiations in order to facilitate movement of employees and this is being done through on-going efforts for national authorities in separate Member States to co-operate in a more structured manner.

Additionally, in May 2014, the EU Council of Ministers has adopted the new Enforcement Directive to increase the protection of workers temporarily posted abroad by, increasing the awareness of workers and companies about their rights and obligations as regards the terms and conditions of employment, improving cooperation between national authorities

in charge of posting and clarifying the definition of posting so as to increase legal certainty for posted workers and service providers, whilst simultaneously tackling ‘letter-box’ companies that use posting to circumvent the law (amongst other).

The posting of workers has not yet had the effect intended for it by the EU. However, through the Enforcement Directive, it may be possible that the initial objectives of this Directive will be reached.

More employers need to start seeing the benefit of posting their employees abroad, and more employees need to be aware of their rights in such circumstances.

For further information about how CSB Advocates can help you with employment related matters contact us on employment@csb-advocates.com

However, none of this is possible if the national authorities in all Member States do not simplify matters for employers and employees. Only time will tell if the Enforcement Directive achieves its purpose.

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Bolam, Bolitho and Baby George Gregory Buttigieg M.D., M.A.(Melit.), L.R.C.P.(Eng.), M.R.C.S.(Lond.), Dip.F.P.(Glas.), F.R.C.O.G., F.R.C.P.I., K.G.C.O.M.

Obstetric medico-legal litigation is a constant sword of Damocles hovering over the various aspects of care the Obstetrician must practice to ensure the safe delivery of a healthy infant to a healthy mother. And just as intensely fulfilling is the lusty cry of a healthy child held lovingly by smiling parents so emotionally demolishing is a brain damaged newborn. Obstetricians had for centuries sought a remedy to find out if and when the child in the labouring utero is in difficulty – which difficulty we now know is hypoxia or lack of oxygenation. For the very contractions of the maternal uterus which are necessary to expedite delivery of the child produce a simultaneous diminution of blood flow to the feto-placental unit. The great majority of cases the child can withstand this temporary and intermittent diminution of blood with every contraction. However there are circumstances when hypoxia supervenes and if sufficiently pronounced it may result in permanent damage to the unborn child. In such situations the timely delivery of the child would save it from death or damage. Modern obstetrics has gone a long way in detecting this threat of fetal distress through Electronic Fetal Monitoring (EFM) during the process of labour. Yet intra-partum hypoxia with resultant fetal damage is an ever present horror haunting obstetricians, in such situations as: The client CY’s mother admitted herself in labour on 31 May 2004. Labour was augmented and during second stage of labour on 1 June 2004 fetal hypoxia

including all variants of such monitoring.5 However CTG monitoring has proved to be more of a pandora’s box rather than a panacea in that in spite of its daily use, scientific controversy6 surrounds the subject for a number of reasons. Among these are poor inter and intra-observer reliability,7 high false positive rate of up to 60%,8 the unquestioned contribution to an increased Caesarean Section rate9 as well as its failure to deliver the much expected pregnancy outcome improved as compared to simple intermittent auscultation.10 These limitations have led to extreme views such as those of Lent who makes the following (entirely challengeable in my view statement):

developed and a vacuum extraction was performed. A very acidotic baby was delivered and subsequently was confirmed to have hypoxic ischaemic encephalopathy and went on to deliver cerebral palsy.’1

Clinically available in the 1960s, EFM in the form of Cardiotocography (CTG),quickly substituted2 the old fashioned Intermittent Auscultation (IA) method of direct fetal stethoscope.3 By the 1970s4 it was used in 84% of all U.S. births and presently it constitutes the most widely used intrapartum monitoring test for fetal distress,

Though obstetricians believe that they should use EFM because its status as the standard of care will protect them from liability, it may in fact expose them to liability given its failings. Instead, auscultation is equally, if not more, safe and effective, and is more likely to protect physicians from liability.11

The first and second statements are partially correct, but the third, especially if applied to high risk cases is dangerous advice for official College12 guidelines clearly state that in high risk situations electronic fetal monitoring should be implemented. In spite of the fact that non adherence to clinical guidelines does not automatically imply an adverse outcome for the defendant,13 a disastrous clinical outcome in the face to such non adherence to such guidelines would be hard to defend in Court.

CY (a minor and a person under a disability) by his father and next friend FY v Western Health and Social Care Trust (a successor to Altnagelvin Hospitals Health and Social Services Trust) [2012] NIQB 72.

Auscultation – the action of listening. The Free Library. http://www.thefreelibrary.com/Auscultation—the+action+of+listening.-a0257127737. Visited 28 September 2014.

3 Normally done at regular intervals by the midwife using a Pinard stethoscope (one of many types of fetal stethoscopes).

4 Ibid.

5 One unit may use computerised analysis, another may combine with ST analysis of the fetal ECG (STAN) etc.

6 TP Sartwelle, ‘Defending a Neurologic Birth Injury: Asphyxia Neonatorum Redux’, J. Legal Med. 181, (2009), 213.

7 FK Lotgering, HC Wallenburg, HJ Schouten, ‘Interobserver and intraobserver variation in the assessment of antepartum cardiotocograms’. Am J Obstet Gynecol 144(6), (1982), 701–705.

8 M Kühnert, M Butterwegge, ‘Ante- and intrapartum cardiotokographic monitoring’, Gynäkologe 39, (2006), 717–730.

9 Z lfirevic, D Devane, GML Gyte, ‘Continuous cardiotocography (CTG) as a form of electronic fetal monitoring (EFM) for fetal assessment during labour’. Cochrane Database Syst Rev 2006, 3 (3):CD006066.

10 Ibid.

11 M Lent, ‘The Medical and Legal Risks of the Electronic Fetal Monitor’, Stanford Law Review, Vol. 51, No. 4, (1999), 807-837.

12 Essentially here we speak of the UK’s College of Obstetricians and Gynaecologists and the USA’s American College of Obstetricians and Gynaecologists.

13 S Ash, J Samanta, M Gunn, ‘Legal considerations of clinical guidelines: will NICE make a difference?’, J R Soc Med, 96, (2003), 133.

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However at one point, Lent does state a fact which elicits resonance as part of a bigger argument: Lent argues that it may in fact expose them to liability given its failings.14

Firstly CTG monitoring does produce a physical and indelible record, which for many reasons and not just CTG failings may expose an obstetrician to liability just as it may provide their defense if good practice is observed. One aspect by which the diagnostic intention of CTG may add to the defendant obstetrician’s problems is what I call the “shifting sands” nature of the interpretation of the CTG - on the basis of the high inter and intraobserver reliability and the high false positive rate. The former refers to the different interpretation which may be given to a specific CTG tracing by two experts (inter observer variation) and even by the same expert on different occasions(intra-observer variation).

Bearing these aspects in mind I would like next to briefly look at the “distillate” of two rudimentary principles applied to medico-legal jurisprudence the Bolam principle15 and that of Bolitho16.

Re-visiting Bolam and Bolitho In English Tort Law it had been long established that in any action for medical negligence at common law, the plaintiff must show three things: that the defendant owed the plaintiff a duty of care, that the defendant breached that duty by falling below the standard of care required by the law; and that the breach was a proximate cause of the damage alleged by the plaintiff.17 In 1957 with Bolam v. Friern Hospital Management Committee [1957] English tort law saw the emergence of the Bolam principle. In a case where patient James Bolam was neither restrained nor administered a muscle relaxant prior to electro-convulsant therapy with resultant violent flailing and subsequent serious injuries. The Court held that

there is no breach of standard of care if a responsible body of similar professionals supports the practice judged even if this did not comply with the established standard of care.

Under this principle the plaintiff needs to establish that (1)the existence of a duty of care by the defendant to the plaintiff (2)the doctor, through omission or commission, breached that duty of care as defined by a responsible body of similar professionals. Criticised for its overreliance on medical testimony and personal judgement of experts, Bolam was subsequently “enriched” in 1997 by the Bolitho Principle.

In Bolitho v. City & Hackney Health Authority, the plaintiff, a mother of a dead two year child, claimed that the doctor involved ( whose bleep had malfunctioned) would have intubated and saved the child had she been present. The defendant maintained that in this particular case, even if available,she still would not have intubated. The Court applied the Bolam test to the defendant, holding that no breach of duty had been effected. The plaintiff appealed and again the Court upheld the ruling quoting that the opinion tallied with that of similar professionals but further than that with the explanation of the facts as given, the reasoning made sense to the Court. The Court upheld that the doctors’ line of action of the defendant was both defensible and logical. The Bolam and Bolitho principles are often employed in tandem as in fact was done at the very birth of the Bolitho principle.

The Bolam principle did establish a repeatedly acknowledged primacy in English Law – it was applied by the House of Lords in respect of diagnosis in 198518, of treatment 198119, and, with some caveats ,the volunteering of information when advising patients on possible treatment20 in 1992. However there are situations that taking Bolam ad litteram and on its sole premise, the

possibility does exist that the courts could potentially not condemn even a foolish practice if this is backed up by a substantial proportion of the members of a particular profession. 21 This is where the Bolitho principle comes into its own. Furthermore Bolitho rightly made the Court and not the medical fraternity the final arbiter of malpractice or its absence.22

It is crucial to appreciate that the Bolam principle establishes the standard of care as determined by the practice of a responsible body of similar professionals. It judges what has been done by the defendant by what is done by peer practice. Here lies one of the Achilles’ tendons of the principle for what is done is not necessarily what ought to be done. And here is one reason why official guidelines need not necessarily be adhered to although this is essentially not particularly wise and furthermore the legal importance of guidelines is bound to increase.23 The “norm” of the practice is not necessary the ideal of practice. An extension of this is given by Gibson in his discussion of “doctrinal feedback”: In the real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care ?extra tests, unneeded procedures, etc.? so as to steer clear of tort liability’s considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, then, the law feeds them back into doctrine, transforming over compliance into mere compliance and ratcheting up the standard of care.

Overcautious physicians consequently have to do even more to steer clear of liability, and the cycle be gins anew. The “doctrinal feedback” phenomenon. 24 In a country like Malta with one government university hospital and a

M Lent, ‘The Medical and Legal Risks of the Electronic Fetal Monitor’, Stanford Law Review, Vol. 51, No. 4, (1999), 807-837.

Bolam v. Friern Hospital Management Committee [1957] 1 WLR 5829.

16 Bolitho v. City & Hackney Health Authority [1997] 3 WLR 1151.

17 Lochgelly Iron Co. v. McMullan [1934] AC I 25.

18 Maynard v. West Midlands Regional Health Authority [1985] 1 All E.R. 635.

19 Whitehouse v. Jordan [1981] 1 W.L.R. 246.

20 Sidaway v. Bethlem, BMLR 11 (1992).

21 R Jackson, ‘Professional Liability’, RSA Journal, Vol.136, No. 5384, (July 1988),536-546.

22 R Mulheron, ‘Trumping “Bolam”: A Critical Legal Analysis of Bolitho “Gloss”, The Cambridge Law Journal, Vol. 69, No.3, (November 2010), 609-638.

23 S Ash, J Samanta, M Gunn, ‘Legal considerations of clinical guidelines: will NICE make a difference?’, J R Soc Med, 96, (2003), 133.

24 J Gibson, ‘Doctrinal Feedback and (un)reasonable care’, Virginia Law Review, Vol. 94, No. 7 (Nov., 2008), pp. 1641-1714.

14 15

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limited pool of choice for a “a responsible body of similar professionals”25 the potential does exist for such a medico-legal quandary.26 One may take as an example of the “extra” and “unneeded” tests, the routine monitoring of high and low risk labouring patients when College guidelines advise such monitoring only in high risk cases.

The reasons may be many and certainly include both defensive medicine27 as well as a genuine intention of giving “the best” care to the labouring patient. .

Furthermore CTG monitoring is a time and personnel saver –although at an otherwise increased cost – for that intermittent auscultation has the disadvantage of requiring 1:1 nursing personnel compared to EFM.”28 Such a practice decreases attention from the real ‘high risk’ labouring woman, induces unnecessary anxiety in medical and midwifery staff and is associated with unwarranted intervention. In such a situation in a Court case involving CTG argumentation, the Court may be misled as to what is the “norm” by Bolam’s body of responsible men themselves influenced by “doctrinal feedback”.

Some reflections on Courtroom CTG through the Bolam – Bolitho principles.

Even the Bolam principle enriched with the Bolitho qualification still has many limitations. I will here look at the application of Bolam-Bolitho to Courtroom CTG interpretation with its “shifting sands” quality.29 Bolam-Bolitho leaves the final decision in the Court’s hands as based on its assessment of whether the argument makes sense or not. Courtroom CTG decisions are a breed of their own where making sense demands great expertise in most cases.

And Judges may be admirably and sufficiently motivated enough to become informed about the subject to

make laudable and erudite statements such as :

Baseline variability describes the changes in the baseline of the FHR30. Such changes occur slowly unless there is an acute accident. Accelerations are the increases in the FHR and they are a positive and reassuring sign if they occur as a response to uterine contractions or movements in which case they are seen occasionally.

They may not occur regularly but they should be seen occasionally. Decelerations are reductions in the FHR of more than 15 beats per minute from the baseline rate, while accelerations are increases in the FHR of more than 15 beats per minute.31 Or, regrettably, misinformed enough to use a CTG classification outdated by at least thrity years:

It is said that if the CTG had still been available the court would be able to tell when it was discontinued and whether there were Type II dips and, if so, for how long (i e whether they were continuous). 32 In the original Bolitho v. City & Hackney

Health Authority common sense and logic dictated that the opinion of “a responsible body of similar professionals” asserted that intubation of the child in question was not indicated and the explanation was assessed to hold water by the Court. The question arises: How is the ordinary Judge in a Courtroom CTG case to make objective sense (1) on a subject which is highly specialised (2) on a subject suffering from “shifting sands” phenomenon (3) when objective interest in the subject varies widely from one Judge to another? And, in Courtrom CTG litigation, is not the decision of the case being passed on back to the medical profession although the final ruling is as always, the venerable Court’s prerogative? This is no insignificant theoretical quibbling akin to the philosophy of establishing how many angels can dance on a pin head. In 2011 “birth asphyxia” comprised 50% of the UK NHS litigation costs,33 and in the 2000-2010 decade, the same NHS forked out £3.1 billion for maternity medico-legal claims34 mostly involving cerebral palsy and CTG misinterpretation.35

Bolam v. Friern Hospital Management Committee [1957] 1 WLR 5829.

Most such professionals in Malta practice Obstetrics and Gynaecology along the latest official guidelines.

There are arguments which state that defensive medicine in this context may actually save lives of the unborn, even if this is a very expensive practice. See AM Vintzileos, DJ Nochimson, ER Guzman, RA Knuppel, M Lake, BS Schifrin, ‘ Intrapartum electronic fetal heart rate monitoring versus intermittent ausculta- tion: A meta-nalysis.’ Obstet Gynecol 85, (1995), 14.

28 Mastroglannis DS, Knuppel RA. Clinical management of preterm birth. In: Fuchs A-R, Fuchs F, Stub- blefield PG, eds. Preterm birth. 2nd ed. New York, NY: McGraw Hill, 1993.

29 Especially referring to its high inter- and intra-observer variations of interpretation.

30 Fetal Heart rate.

31 Smith v West Yorkshire Health Authority (t/a Leeds Health Authority) [2004] All ER (D) 410 (May). Judgement date 27 May 2004.

32 Whiston v London Strategic Health Authority [2009] EWHC 956 (QB), HQ06X03108.

33 NHS Litigation Authority (2011) Factsheet 3: Information on claims. NHSLA, London. http://www.nhsla.com Visited 05.01.2013.

34 The highest of any speciality.

35 Z Kmietowicz, ‘NHS in England paid out £3.1bn in compensation claims linked to maternity care in past decade’, British Medical Journal, 345, (2012) e7290.

25 26 27

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Courtroom CTG is as contentious as clinical CTG. While reversing a decree of absolvitor by the Lord Ordinary, Lord Eassie, Lord Hardie, and Lord Emslie stated that

The Lord Ordinary had erred in failing to conclude that the consultant obstetrician had a duty to intervene based on her apparent acceptance in evidence that shortly before 16.00 hrs, the CTG trace was “pathological” with areas of reduced variability, a tachycardia and persistent late decelerations. It was also submitted that the Lord Ordinary erred in attaching weight to the evidence of the defenders’ expert witnesses which was based on their own interpretation of the CTG trace and not the treating consultant’s interpretation.

Interesting to note that the Ordinary Lords had allowed the influence of the defender’s expert to hold sway, while the Superior Lords took the final decision back in the Courts’ hands.

Wise indeed are the words of the Lord Bannatyne in Nadine Montgomery v Lanarkshire Health Board36:

the key issues to be addressed are the extent to which the courts are prepared to engage with expert testimony and identifying the point at which it becomes acceptable to disregard the commonly held views of the medical profession.

This may be an arduous task indeed, especially if medical opinion is equally divided – in the case just quoted, two bodies of expert opinion supported the defendant’s interpretation of the CTG trace while two equally expert bodies disagreed leaving the Judge to arbitrate.37 At times disagreement arises

even regarding in the basic explanation of CTG elements:

It was put to him in cross-examination that accelerations could only suggest that the baby was not suffering from hypoxia.

Dr Schneider disagreed: he said the presence of accelerations meant that the baby was going through a normal sleeping/waking cycle, and was reacting normally to external stimuli.38

Bolam’s “breach of duty” comes into its own if CTG moinitoring is not resorted to when clinically indicated and when most obstetricians would do so.

…both doctors were in clear breach of duty in turning off the CTG and allowing the pregnancy to continue. Mr Maskrey suggests the breach of duty by Dr Holmes may have occurred because he was misled by Dr Schneider’s inaccurate assessment.39 Bolam’s applied ‘duty of care’ as defined by a responsible body of similar professionals implies two entities in the scenario – the defendant’s action on one hand and the “responsible body of similar professionals” on the other. As applied to Courtroom CTG litigation, an important element of modern day obstetric care is left out of the equation – patient consent. In Tippett v Guy’s & St Thomas’ Hospital NHS Foundation Trust, a case which was dismissed by the Court, we find one example of patient non-compliance with her own care: On the facts and evidence, the mother removed the trace at 1155 hours, and that it had been reconnected by the midwife at 1331 hours. 40

In such a case one may argue that, although the performance of an operation or the giving of medical treatment without the patient’s consent amounts to a criminal battery,41 in view of the worrying CTG tracing, one may have sought permission from or at least discussed the issue with the hospital legal advisors. Such patient noncompliance may have at its root causes many factors and the situation requires special attention in Malta with its changing ethnic profile of obstetric patients one example being the sociocultural induced resistance to C-section involving the irregular migrants especially from the sub-Saharan or Horn of Africa.42In the latter situation the obstetrician in the Labour Ward can and should revert his case to the Attorney General to proceed in spite of patient non-compliance.43 This article skims a small part of the surface of the ocean one may navigate on where the Bolam-Bolitho principles encounter Courtroom CTG disputes.

Most Obstetricians employ CTG as part of the intra-partum care of a labouring woman because they care about the well being of the unborn.

Such a practice produces a permanent record which may be used in defence or attack in a Court of Law. Although the “shifting sands” nature of CTG may make it a “loose cannon” in a Court of Law the Obstetrician, if he maintains good practice should persist in his practice of using CTG monitoring when indicated. The principles of Bolam and Bolitho, however limited and disputable, are there to precisely safeguard such good practice when a clinician needs to account for his actions in a Court of Law, be it criminal or civil.

Nadine Montgomery v Lanarkshire Health Board [2010] CSOH 104; 2010 WL 3073077.

R Heywood, ‘Negligent Antenatal Disclosure and Management of Labour. Commentary’19 (1), (2011), Med Law Rev, 140.

38 Ludwig (by her mother & litigation friend Della Louise Ludwig) v Oxford Radcliffe Hospitals NHS Trust and another [2012] EWHC 96 (QB).

39 Ibid.

40 Tippett v Guy’s & St Thomas’ Hospital NHS Foundation Trust[2014] All ER (D) 15 (Apr).

41 See(UK) criminal law vol 25 (2010) paras 125–127, 157.

42 G G Buttigieg, ‘The Need for Shifting the Paradigm’, Law and Practice, 2014, 4-11.

43 Although modern Court trends in general, tend to hold that a pregnant woman has the same rights of any adult person who is competent to make her own health care choices, even if such a choice puts her life or of that of the child at risk. See S Michalowski, ‘Court-Authorised Caesarean Sections. The End of a Trend?’, Vol. 62, No. 1 (Jan., 1999), The Modern Law Review, 115-127.

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Guardianship: Marilyn Spiteri Ms Marilyn Spiteri, is the Registrar of the Guardianship Board. She held a briefing session at the Chamber of Advocates on the 22nd April 2015, in which she highlighted the areas of the legislation related to guardianship.

The Guardianship Board and Registry Act no. XXIV of 2012 introduced a new revamped Guardianship legislation in Malta through amendments made to the Civil Code and the Code of Organisation and Civil Procedure. The system of Guardianship is intended for those persons with disability or mental disorders1 requiring a various extent of support in order to manage their own affairs. Guardianship Orders are characterized by a respect for and consideration of the aspirations of the person subject to guardianship and promotion of the well-being of the person. The law delineates that the parameters of guardianship orders should be in line with the aims that are intended to be achieved and freedom of choice and action of the person subject to guardianship should only be restricted when necessary and only to an extent that is proportionate to the aim pursued.

The Guardianship Board was appointed in July 2014 and is composed of a Judge who is the President of the Board, a member appointed after consultation with the National Commission Persons with Disability and a member appointed after consultation with the authority responsible for safeguarding the rights of persons with mental disorder and the elderly. When making decisions, the Board takes into account the wishes of

1

the person who will be subject to guardianship, the possibility of maintaining family and social relationships and the compatibility of the person proposed as a guardian with the person subject to guardianship.

Applications for guardianship are received at the Guardianship Registry, located at the address below. Requests for guardianship can be made by any person who voluntarily wishes to be made subject to guardianship, spouses, any person related to another who provides maintenance to the person who has a mental disorder or other condition, any person related by family ties and the Attorney General in case of a mental disorder or other condition, which renders a person incapable of managing their own affairs.

Guardians are obliged to act in the best interests of the person subject to guardianship and be responsible to safeguard the personal and proprietary well being of the person to whose guardianship they are appointed.

Guardians can act instead of the person in matters of personal or proprietary nature and do any other thing for or on behalf of the person to whose guardianship they are appointed. In addition, Guardians are also expected to provide the support required to the

person subject to guardianship in exercising legal capacity in so far as this is possible, consult with them, take into account and respect their rights, will and preferences and encourage them to participate as far as possible in the life of the community. Guardians are obliged to encourage and assist the person subject to guardianship to become capable of caring for oneself and one’s property and make responsible judgments in matters related to one’s person and property and protect them from neglect, abuse or exploitation.

Interdiction and incapacitation orders can be converted to Guardianship orders through a request to the Court of Voluntary Jurisdiction. Consultation with the Guardianship board is held when necessary and if there are sufficient grounds for the conversion to be made, a Guardianship order is issued and the interdiction/incapacitation is revoked.

The office of the Registrar of the Guardianship Board is located at No. 1, Triq Patri Gwann Azzopardi Santa Venera. The office can be contacted on telephone number: 22568249 or by email at guardianship.mfss@gov.mt

The term ‘mental disorder’ has the same meaning as that assigned to it in the Mental Health Act (Cap.525 of the Laws od Malta).

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What are the Presupposti Processuali in the light of a balance between legal theory and practical notion?

Matthew graduated with a Bachelor of Laws degree in 2013 and with the Diploma in Notary Public in 2014, both from the University of Malta.

Currently he holds the position of Vice President within the Junior Chamber of Advocates.

In his previous term he was elected as Projects Manager within the same J.C.A.

Dr Matthew Xuereb

INTRODUCTION

“I presupposti processuali sono I requisiti che devono sussistire prima della proposizione dell’ azione civile e che sono indispensabili per il procedere del processo sino al raggiungimento della pronuncia sul merito.”1

BÜlow and Ellwig gave birth to the notion of postulates basing their thought on the civil action as being abstract and autonomous from the substantive norm it is based on; as such certain requisites are fundamental for the action’s existence to be valid. The Presupposti Processuali are the preliminary requirements to have proceedings validly instituted.

The Essential elements of the Presupposti Processuali and Italian Authors

As such this definition lacks focus and in it’s examination it merits a strive towards identification of the underlying essentials coupled with an authoritative writing dwell on which presupposti ought to be maintained.

His student involvement saw him head projects with the Law student representatives of the University of ‘La Sapienza’ Rome. He is also well known among law students locally for organizing a streak of successful law related seminars and courses.

1) Existence of a competent court views matters which ought to be dealt with in a particular court. This concept goes hand in hand with jurisdiction2 which must be also present for proceedings to be validly instituted.

There is no clear cut list of presupposti yet a general out line focuses on a threefold distinction. Firstly there are those akin to the existence of proceedings e.g. Jurisdiction. There are also presupposti being relative to the validity of the action, these are quintessential as for a pronouncement on the merits to take place e.g. juridical interest. Finally there are proceedings which aught not be present at the time of demand but are necessary for further development of the proceedings.

Mandrioli points out that presupposti view many authors having varied opinions. The central doctrine provides that the presupposti are the requisites which aught be in existence at the moment that the demand is made.

These requisites aim at effectiveness of the cause or legal process and to its potential in resulting in a decision or pronouncement by the judiciary.

Andrea Lungo in a simplistic way creates an analogy between the presupposti and the requisites of a civil action, in that both relate to the requisites of the preliminary stage of the dispute; yet which are separate and distinct. He goes on to define the presupposti as conditions which open the civil process and bind the judge to deliver a judgment upon demand being made. One ought to draw a distinction between the presupposti processuali and the condizioni dell’ azione; the former is solely procedural whilst the latter is regulated by substantial law.

2) A Valid Legal Interest is a requirement that is specific to all parties and is a requirement which is a threshold to valid proceedings. The Ramblers3 saw Judge Mc Keon as studying the issue of interest of an association “rapprezentazzjonijiet malawtoritajiet kompetenti biex tassigura l-infurzar tal-ligi fir-rispett tal-interessi u drittijiet ambjentali tac-cittadin.”4 The court here held that “s-socjetà rikorrenti m’ghandhiex l-interess guridiku mehtieg” as the three cumulative requirements were not satisfied. These requirements feature;

Prof. Romano Cicone – Insegnamento Di Diritto Processuale Civile I – ‘La Funzione Giurisdizionale’ http://www.unipegaso.it/materiali/LMG-01/annoIII/ProcCiv_Ciccone/ModI/Lezione_I.pdf 2 As a general measure it is the power and authority of the courts to decide on a dispute whilst competence is the division of that power.

3 Is-socjetà “The Ramblers’ Association of Malta” vs L-Awtorita` ta` Malta dwar l-Ambjent u l-Ippjanar; Marthese Said u l-Avukat Victor Scerri ghalkwalunkwe interess li jistà jkollu (2012) 4 pg 2- 24 1

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interest as being “Guridiku” “fis-sens illi d-domanda jrid ikun fiha ipotesi ta’ lezistenza ta’ dritt u l-vjolazzjoni tieghu”, “Dirett u Personali”5 as such “personal juridical interest” endorsed by our legal system”6 and “attwali”7.

Contemporary interpretation of legal interest focuses on the collective interest as being diffused and detachment from ‘personal’. In Italy it is clear that an NGO (‘Italia Nostra’8) has been given locus standi. The German doctrine is very detailed as opposed to the Italian which is very sparse. In Canada there is amicus curie status; a sort of intervenor status to claim. Our legal culture views Alternattiva Democratika as being denied locus standi on the constitutions neutrality clause. In Trapani Galea9, post the Port De Bomb Ordinance novelty it was decided that actual neighbors had an interest and actual standi, the loose meaning of neighborhood association groups were also given locus standi and even local councils were given locus standi. After this in the Attard Montaldo10 case delt with the development of a hospital as negatively impacting parties not personally involved. As such an evolution has brought us to contemporary legislation such as the the Environmental Planning Act, Cultural Heritage Act and Collective Proceedings Act and more traditional approaches via Cultural Property Act.

The nature of legal interest is “Peremptory pleas claim that a case cannot proceed for some reason.”11 As such “Bl-eccezzjoni tal-actio popolaris”12 which is not collective interest; commonly within the realm of unions as per Buhagiar Vs Ministru Tal-

Edukazzjoni13 where the industrial action viewed interest as pertaining to the teachers union which claimed discrimination on a directive being breached. Here the action not only was within the unions and its members purview but “l-interess trade Union ghandha tibqa’ maghluqa barra minn kollox … dizastruzi l-konsegwenzi flghoqsma.” As such “interess huwa l-kejl ta’ kull azzjoni .. huwa l-qofol talazzjoni.”14 Tabone vs Mintoff15 saw the ‘medical officers union’ as not vested with the three elements of juridical interest in an action against the government “dwar il-kondotta ta’ tabib li hu membru.” As such here the unions interest was considered as “teoriku” not “Guridiku”.

Decleratory Remedies view ‘a talba biex tiddikjara u tiddeciedi’ which must be backed up by tangible measures.

Here e.g. responsibility to quantify

damages or nullity are sought. “an individual lacking locus standi is an incompetent plaintiff.”16 Standing is defined by interest, because interest is based both on fact and on law and it is at least this fumus boni juris. This brings us to distinguish a Res Judicata where as “mill-gurisprudenza taghna, u wkoll minn diversi awturi” as demonstrated in Alfred Agius17 has merits already decided; as opposed to a liberatoria18 where as in Vella v Magro19 and Bonello v Dale20 “tilqa’ l-eccezzjoni talillegittimita’ tal-persuna sollevata …u tillibera ..mill-osservanza tal-gudizzju.”

Attard v Abela21 delt with the issue of 3) passive legitimation and held that “tipprova ggib fix-xejn dritt li jappartjeni lid-detentur jew li lilu jkun mistoqq.”

Whilst in Farrugia vs Buhagiar “Illi linteress guridiku f ’attur huwa dak li l-imharrek jirrifjuta li jaghraf il-jedd talistess attur u li, fih innifsu, johloq il-htiega

“ikun dirett meta jezisti fil-kontestazzjoni jew fil- konsegwenzi taghha, u jkun personali fis-sens li jirrigwarda l-attur, hlief ghall-azzjoni popolari (li mhix il-kaz tal-lum)” Silvio Camilleri – Chief Justice – Letter – May/05/2013 file:///C:/Users/Admin/Downloads/Letter%20by%20CJ%20Camilleri%20re%20comments%20by%20Dr%20Bonello.pdf 7 “fis-sens li jrid johrog minn stat attwali ta’ vjolazzjoni ta’ dritt, jigifieri l-vjolazzjoni attwali tal-ligi trid tikkonsisti f ’kondizzjoni posittiva jew negattiva kontrarja ghall-godiment ta’ dirett legalment appartenentijew spettanti lid-detentur.’ ” 8 Civil Society, International Courts and Compliance Bodies – edited by Tullio Treves 9 Trapani Galea vs. PA (Planning Authority) [today MEPA] – Planning Appeals Board 10 Attard Montalto and others vs. Sliema Local Council 11 http://definitions.uslegal.com/p/peremptory-pleas/ 12 Ramblers – pg 12 minn 24 13 Alfred Buhagiar Pro. Et Noe. Vs Ministru Tal-Edukazzjoni 14 Ramblers 15 Dottor Vincent Tabone et vs Onor. Domenico Mintoff – 7/Jan/1957 16 B Hough – 1997 – http://ibal.bmth.ac.uk/pdf_docs/86.pdf 17 Agius Alfred Vs Awtorita' Ta' Malta Dwar L-Ambjent U L-Ippjanar (2011) 18 The liberatoria is not a statement on the merits but a statement of lack of involvement; it has not defined the merits but is a procedural statement simply stating that the defendant has no interest to be present as defendant, had no locus standi and therefore there can be no valid proceedings, directed against the defendant.

19 Paul Vella Et Vs Anthony Magro – 06/10/1997 20 Carmela Bonello Vs Ronald Dale- 21/11/1964 21 Attard et noe vs Abela noe et – 12/Dec/2001 5 6

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tal-vertenza.” Here the factual and the legal involvement of the defendant defines his interest; interest which has to be direct and personal and find a legal and factual basis. This also applies to a ‘Kjamat fil-kawza’22 having basis in the ‘integrita’ tal-gudizzju’, which ensures all involved parties as being part of the ‘litis consortium.’

Micheli sustains that the presupposti are the necessary requisites for there to be the rapporto processuale.

Absence of these elements means that the proceedings have no juridical basis and as such the judge is not duty bound to decide on the matter and is not empowered to do so; this also holds when the issue does not concern the merits of the case. Here the presupposti consist of: A) Organ which has jurisdiction, B) Subject which has capacity and C) The Demand.

Chiovenda23 firstly treats the principle of the authority of the Judge, which leads to the attribution of direction of the proceedings. Secondly time is fundamental, this due to issues of prescription, orality and speed. Lastly the concentration of proceedings is essential as proceedings which are set far apart dilute the advantages of oral proceedings.

Chiovenda deems the presupposti to be a key “affinché il processo possa giungere al suo esito fisiologico, che è la decisione nel merito della causa.”24 If these elements are not present absence translates in to a judge having no obligation to decide and more importantly the judge is not obliged to decide on the merits of the case.

Chiovenda holds presupposti as being: A) the Capacity of the Judge, B) Absence of a Res Judicata or other processes on the same issue, C) Procedural Capacity, D) Representative Power where representation is used, E) adherence to tax laws, F) demonstrating that an attempt to reconcile has been made.

Sauer, Zanzucchi and Vocino distinguish presupposti as; minimal conditions. Here these minimal conditions are: a) the presence of a demand being presented, B) before an organ having jurisdiction and C) by a subject that has rights. The Second premise shifts on A) presentation of a demand being substantially valid, B) an organ which has capacity and competence, C) by a subject against an other subject both of which have the necessary capacity to be party to the civil action. The Third form view The third form of presupposti hereunder are the conditions which must be

present in order for the action to continue. These include conditions pertinent to A) ulterior acts, B) the absence of peremptory procedural pleas and C) the absence of a compromise.

CONCLUSION

In order for there to be a streamline of the civil process, to reduce extra cases, to reduce expenses and for reasons of best practice; our position is that of Vella vs Dr. Cefai25 where there are procedural defects that are not radical and serious, the Court may, in camera give all orders as necessary for procedural law to be adhered to and not annul the action. “26 Our courts have held that nullity of judicial acts is an extreme sanction which should only be applied in the presence of a formal and substantial defect and if it can not be remedied without prejudice to some principle of procedural justice.

This reasoning goes hand in hand with 789 COCP27

As such even if no definition is in stone one finds contemporary and traditional conceptualization of procedural law and authoritative writing paving the way to conceptualization of our local juridical flexibility.

kjamat fil-kawza can only happen at first instance – these on the basis of the general rule that evidence is closed at first instance. “la maggior parte delle sue operesono presenti in Saggi di Diritto processuale civile (Bologna, 1904) e Nuovi Saggi dirritto di proceduracivile (Nápoli, 1912).”

24 Journal – ‘La Decisione Di Merito le Sue Condizioni’ http://www.giappichelli.it/custom/materiali/3482926/05/02.pdf 25 Guido J. Vella A. & C.E. v Dr. Emmanuel Cefai – Court of Appeal (Civil, Superior) in 1991 26 F’dawn il- kazijiet huwa dejjem opportun li l-Qorti kemm jista’ jkun, ghall-pratticita’ u biex tigi evitata multiplikazzjoni ta’ kawzi u spejjez zejda, ghandha tkun pjuttost iebsa fl-akkoljiment tal-ecezzjoni tan-nullita’ u kemm jista’ jkun issalva atti gudizzjarji, u att ta’ citazzjoni ghandu jigi mwaqqa’ u annullat biss ghal ragunijiet gravi.

27 ???

22 23

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The Right to Encryption Kurt Mahoney Kurt Mahoney BSc (Hons) MSc (Cran) ACE MBCS is a Digital Forensic Consultant with Mahoney & Co and is a registered and practicing Court Expert with the Courts of Malta. Mahoney & Co is an independent member of Morison International and the First Forensic Forum (F3).

Encryption, for the not so tech-savvy amongst us, is the term used for encoding data - or ‘locking’ it if you will.

Some of you may imagine this to be in the realm of spies, conspiracy theories and cold-war style arenas. Encryption, however, has become very commonplace. Communications are often encrypted (for example, when making online purchases or accessing Facebook), whether we are aware of it or not. This is a type of point-to-point encryption, as opposed to data-storage encryption such as that found on a mobile phone.

Point-to-point encryption necessitates that at least two parties (or two devices) will have the keys. For example, when using Facebook, data is transported encrypted from the Facebook servers and decrypted on one’s personal device as long as that user account has access to that data. In most cases, the data itself is held unencrypted at both ends of the channel and could therefore be acquired through legal proceedings without much trouble, but what about our phones, laptops, tablets and a myriad of other digital devices? Who will hold the ‘keys’ if we encrypt them?

Well, this is where it gets tricky.

Different encryption methods use different techniques. To put it plainly, some locks come with master keys, which are usually held by the manufacturer. Other locks of dubious quality could be picked - same goes for encryption.

Let us assume that we all have the facility to easily encrypt all our data (phones, laptops etc.) with unbreakable locks and only we have the keys.

Sounds like our Right to Privacy after all, right? Perhaps we can coin a new right - the Right to Encryption? The US had this discussion last September over plans by Apple and Android’s maker Google to encrypt all mobile phones by default. The FBI claimed (and rightly so) that this move by the two largest mobile phone operating systems would seriously and significantly hamper criminal investigations. Of course, in

their defence, the Big 2 pulled The Right to Privacy card.

So how big of a deal is this? What knock-on effect could it have for citizens, companies and law enforcement, not only in the US but in Malta and Europe? Encryption is already widely used by criminal organisations, and governments spend a fortune trying to crack codes whose very design they would have sponsored in the first place. We all have the right to privacy, granted, but what if encryption were tangible? Would we still ignore it in the same way we do now? What if it manifested in a very large unbreakable safe, whose contents were likely to contain evidence on everything, from drugs to gun-running to human trafficking? Would the general population just accept that it cannot be opened and even defend the owner’s right to own such a safe? I doubt it - yet that is how a lot of us feel about encryption.

Is there a simple and balanced solution?

Not really... one may be able to control the sale and use of a large metal object (a safe), but how can anyone enforce some sort of regulation on very strong encryption? The free and notorious

TrueCrypt encryption software is a well-known headache for law enforcement. This was bizarrely discontinued last year when the developers decided to direct their users towards Microsoft’s own encryption (BitLocker). Perhaps this trend of using encryption software designed by large corporations may partly solve the problem as law enforcement agencies may apply pressure to obtain the ‘master key’ or details of a backdoor. Of course, this is a double edged sword – if the public starts to lose trust in these companies then other TrueCrypt-style projects will start to emerge.

Carefully drafted legislation on encryption will be essential within the next ten to twenty years in order to find a balance between privacy and the ability to properly conduct an investigation. Any balance found in this area would almost certainly involve a hybrid of digital security techniques and physical security, as the latter is still the least impenetrable. Just like the Computer Misuse Act before it, any legislation on encryption must be drafted and implemented on an international level in order to be effective. After all, the Internet renders physical boundaries superfluous.

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