BARC COMPANY LIMITED v. MALTA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Luis López Guerra
1. The applicant company, Barc Company Limited, is a Limited Liability Company registered in Malta. It was represented before the Court by Bindmans LLP, lawyers practising in London. 2. 3. On 22 June 1990 civil proceedings in relation to a block of apartments were instituted by CGB against GA, BA and RA as directors and on behalf of A. Ltd and RA also in his own personal capacity. 4. On 20 January 1998 the Civil Court found in favour of CGB. 5. On appeal, on 24 February 1998 CGB requested the Court of Appeal to join the applicant company to the proceedings in substitution of RA, since it had inherited his rights and liabilities. The applicant company and the other defendants objected on the basis that an extraneous person could not be introduced at that stage of the proceedings. 6. By an interim decision of 8 July 1998 the Court of Appeal ordered the appellants to submit to the registry a copy of the relevant deed of transfer. 7. On 18 January 2000, following the relevant verification, namely that on 12 May 1995 BA, on behalf of the applicant company, had acquired one of the apartments at issue in the proceedings, the Court of Appeal accepted the request for substitution. It noted that the relevant deed of transfer explicitly stated that the vendors (RA and his spouse) were assigning to the purchaser all the litigation rights pertaining to them in the present lawsuit. Consequently, the request was justified. 8. The civil proceedings before the Court of Appeal remained pending throughout the following proceedings. 9. On 7 April 2000 the applicant company instituted constitutional redress proceedings. It complained under Article 6 of the Convention that the Court of Appeal decision of 18 January 2000 had deprived it of a double degree of jurisdiction in the proceedings in question, since it had only become part of the proceedings at the appeal stage. In consequence, it had not been given the opportunity to submit evidence and pleadings or to cross-examine witnesses. 10. On 30 June 2000 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant company's claims. It held that by means of the contract dated 12 May 1995 the applicant company had bought the apartment at issue, together with any litigation rights according to law in the relevant proceedings. By means of this deed the applicant company undertook the duties and rights held by its predecessor RA and therefore it could not be considered a distinct entity. Moreover, this transfer of rights and obligations had taken place when the proceedings were still pending before the first-instance court and, at the time, the applicant company had not made any request for substitution. Thus, the Civil Court found that the claim was manifestly ill-founded, all the more so since Article 6 of the Convention did not guarantee a right of appeal against a decision in civil matters. It only stated that where such a right existed it should be in conformity with the guarantees under Article 6. 11. On 10 July 2000 the applicant company appealed. 12. On 20 June 2005 the Constitutional Court upheld the first-instance judgment. It reiterated that the applicant company had fully taken over the rights and duties of its predecessor according to law and that it was the applicant company's duty to lodge a request to be substituted in the acts of the proceedings. However, as acknowledged by the applicant company, it had chosen not to intervene at that stage as it was not in its interests. It was paradoxical that at that stage the applicant company had chosen not to intervene to protect its interest and that now it was claiming that its right had been breached because it had not been a party to the first-instance proceedings. The Constitutional Court considered that since the applicant company had been at fault in failing to safeguard its interests at the time, it could not claim a breach of the Convention at this stage. Moreover, in this light, it was evident that the applicant company had been acting in bad faith. 13. On 17 October 2005 the applicant company made a request for a retrial. 14. On 13 February 2006 this request was rejected as null and void, it having been introduced after the three-month time-limit set by law. 15. On 18 October 2005 the applicant company instituted a new set of constitutional redress proceedings. It complained that the procedure adopted by the Court of Appeal resulting from its interim decisions of 8 July 1998 and 18 January 2000 was not provided for in the Code of Organisation and Civil Proceedure and was therefore “extra legem” (not covered by law). In consequence it had breached the applicant company's right to a fair trial under Article 6 of the Convention. 16. On 18 May 2006 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant company's claims. It expressed doubt as to whether the applicant company could institute these proceedings, since the matters at issue had been or could have been invoked in previous proceedings. However, even on the merits the complaint was manifestly ill-founded. It considered, as had the previous constitutional jurisdictions, that it was for the applicant company to request to be substituted into the proceedings in order to safeguard its interests. Moreover, the procedure adopted by the Court of Appeal was not new. The transfer of litigation rights as a concept and its application was clearly enshrined in the Maltese Civil Code. The applicant company knew exactly what rights and duties it was purchasing on signing the deed of 12 May 1995 and was aware of the pending proceedings. In consequence, it could have opted not to purchase the said property if the conditions were not to its liking. Indeed, in the proceedings in question the applicant company could not be considered distinct to its predecessor RA. Upon the assignment of interests RA was divested of his litigation rights and no longer had any interest in the case, this juridical interest being now vested in the applicant company as owner of the apartment and the litigation rights pertaining to it. Ultimately, the court considered that the application was an abuse of process both because the impugned legal issues were clearly established in domestic procedure and because the applicant company should have made its complaint in its first set of proceedings and not in a new set of proceedings with the aim of stalling the judicial process. In consequence, finding the application to be frivolous and vexatious, the court ordered the applicant company to pay additional costs. 17. On 25 May 2006 the applicant appealed. 18. By a judgment of 6 June 2006, the Constitutional Court dismissed the appeal as null and void, since no appeal lay against judgments declaring applications frivolous and vexatious. Moreover, it was clear that the same appeal was yet another attempt to further stall the proceedings and was a clear abuse of process. The applicant company''s actions were undoubtedly and outrightly an abuse of process and the first-instance court had been perfectly justified in declaring the application frivolous and vexatious. It ordered the applicant to pay double the costs due. 19. Article 1469 of the Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows: “The assignment or sale of a debt, or of a right or of a cause of action is complete, and the ownership is ipso jure acquired by the assignee as soon as the debt, the right or the cause of action, and the price have been agreed upon, and, except in the case of a right transferable by the delivery of the respective document of title, the deed of assignment is made.”