Insights

In its judgement delivered on the 15 July 2021 in the names of Carabott Joan v. Savina Dental Clinic et, the First Hall of the Civil Court, presided over by Mr. Justice Toni Abela, considered the implications of the privilegium fori set out under Maltese procedural law.

In brief, the pertinent facts of the case are as follows.

Background

Via sworn application tabled on the 23 December 2020, the plaintiff established that she had engaged the defendants’ services to carry out a number of dental interventions consisting primarily in the implantation of dental implants over a number of scheduled appointments. The plaintiff alleged that following these dental interventions, she had been left in considerable discomfort and pain, and that she had suffered a permanent disability owing to the damage which had been caused to her teeth. Pursuant to this allegation, the plaintiff contended that she had suffered both damnum emergens (i.e. actual losses incurred – for example, expenses incurred by the plaintiff as a result of the damage suffered) and lucrum cessans (i.e. the loss of future earnings as a result of the damage suffered), and that these damages ought to be borne by the defendants owing to their negligence and/or lack of care and diligence in exercising their profession.

In their sworn reply, the defendants retorted that the plaintiff’s allegations were manifestly unfounded both in fact and at law, and further inserted a preliminary plea pertaining to privilegium fori, since both defendants (i.e. the dental clinic and the dentist concerned) were registered and resident in Gozo, respectively, yet the case had been instituted by the plaintiff here in Malta regardless. In other words, the defendants contended that jurisdiction effectively lay with the Gozitan courts, and that consequently, the Maltese court should not entertain the merits of the case.

Owing to the insertion of this preliminary plea, the Court proceeded to consider the issue of privilegium fori in line with the expectations of procedural law.

The law

Article 741(c) of the Code of Organisation and Civil Procedure (“COCP”) states that it shall be lawful to plead to the jurisdiction of the court when “the privilege of being sued in a particular court is granted to the defendant.” This is supplemented further by Articles 767 and 768 of the COCP, which state (respectively):

767. The privilege referred to in article 741(c) is granted to parties residing in the Island of Malta with reference to the courts of such Island, and to parties residing in either of the Islands of Gozo and Comino with reference to the court of such Islands.
     
768. (1) Where the number of the defendants residing in Malta exceeds that of the defendants residing in the Islands of Gozo and Comino, each of the defendants residing in Malta may deny the jurisdiction of the court of Gozo; and where the number of the defendants residing in the Islands of Gozo and Comino exceeds that of the defendants residing in Malta, each of the defendants residing in Gozo or Comino may deny the jurisdiction of the court of Malta.

(2) Where the jurisdiction of a court is denied by one of the parties, such court shall cease to have jurisdiction in regard to all the parties.

The Court’s considerations

The Court remarked that had residence of the parties been the sole factor to consider, then on the basis of the law cited previously, the Maltese court would not be competent to hear this particular case since both defendants are to be considered as ‘resident’ on the island of Gozo. This notwithstanding, the Court considered, pursuant to the Court of Appeal’s dictum in John Borg v. Salvatore Bonnici (Appeal – 19/11/1954), that there existed circumstances at law were the cited privilegium fori would no longer subsist. In this respect, the Court noted that the plaintiff had cited Article 770 of the COCP, which holds:

770. The privilegium fori shall also cease, where the action touches an obligation which, according to the agreement, was to be carried out in any one particular Island. (emphasis added)

In this respect, the Court noted that the dental services were provided to the plaintiff in Malta. The defendants had, however, maintained that Article 770 dealt solely with instances where a particular obligation emanates ex contractu (i.e. pursuant to a written agreement), and that this was not the case in the current circumstances since the liability being alleged was effectively of a quasi-tortious nature.

The Court proceeded to make reference to John Mary Grima v. Francis Cutajar et (Appeal – 28/01/2013) which confirmed that (for the purposes of Article 770 of the COCP) even where the cause of a lawsuit does not relate specifically to the place of execution of a particular obligation, but rather to a state of affairs which relates to said obligation, then (as an accessory to the principal obligation) the waiver of privilegium fori under Article 770 of the COCP would still apply. The Court noted that the alleged damages incurred by the plaintiff were to be the secondary effect (or accessory) of a principal obligation emanating from an agreement the execution of which had occurred on the island of Malta. This therefore meant that the dictum in Grima v. Cutajar et applied perfectly to the matter at hand.

The Court’s conclusions

In view of the above, the Court rejected the defendants’ preliminary plea regarding privilegium fori and ordered the continuation of the lawsuit in Malta.

This article was first published in the Malta Independent.