Insights

In its judgement delivered on the 15 September 2021, in the names of Aurelio Tanti (the “Plaintiff”) vs Chris D’Anastasi (the “Defendant”), the First Hall Civil Court (the “Court”), presided over by Justice Dr Christian Falzon Scerri, had to consider the requisite elements for the issuance of a warrant of prohibitory injunction.

In the case at hand, the Plaintiff owned a first-floor apartment in a block of flats in, Triq San Pawl, Had-Dingli. The Defendant had procured a planning permit from the Planning Authority to develop a block of flats including garages directly adjacent to the block of flats in which the plaintiff owned his apartment. According to the Plaintiff and his architect, the approved development plans showed that the Defendant was to undertake excavation works at a distance which was less than the minimum seventy-six centimetres distance prescribed by article 439 of the Civil Code, Chapter 16 of the Laws of Malta (the “Civil Code”). Moreover, the defendant was to make a number of apertures in the dividing wall without his consent which would also compromise the structure of the whole block.

Accordingly, the Plaintiff filed an application for the issuance of a warrant of prohibitory injunction to stop the Defendant from conducting any excavation works or construction beside his property. The Court upheld the request and initially issued such warrant for a short period of time until it issued its final decree and gave the Defendant ten days to file his replies.

In his reply, the Defendant raised a number of preliminary pleas arguing against the issuance of the warrant, however, the Court had to consider the validity of such pleas at this stage of the proceedings. Referring to a decree issued by the Court in the case of MPM Capital Investments Limited vs Alfred Anton Zarifa et, it noted that certain preliminary pleas were not adequate when considering an application for the issuance of a precautionary warrant unless such pleas were linked to a defect in the manner or form required at law for the issuance of the warrant. For such a preliminary plea to be considered, this should be tied to a defect in the legal requisites for the issuance of the warrant which would render the application invalid.

The Court noted that the preliminary pleas raised by the Defendant were not linked to the validity of the application filed by the Plaintiff, therefore it was not strictly bound to consider them further. Nevertheless, the Court explained that in proceedings for the issuance of a precautionary warrant, the Court would only consider those acts which can take place in the present or in the near future. In fact, if it is shown that the act or behaviour which the applicant is seeking to prevent has already taken place, the scope for the issuance of the warrant is lost. Therefore, in this case, the fact that the works had not yet started did not render the Plaintiff’s application invalid. Moreover, the fact that the Plaintiff did not file the application against all the owners does not preclude the Court from considering the request for the issuance of the warrant. When a warrant is issued, it only binds the person against whom it is issued and the action on the merits to be filed following the issuance of the warrant can only be made against the person bound by the warrant. Therefore, any plea relating to the proper defendant should be raised during proceedings relating to the merits of the case.

Having dismissed the pleas raised by the Defendant, the Court had to consider whether the requisites for the issuance of the warrant of prohibitory injunction subsisted. The scope of the warrant is to prevent a person from doing anything which can prejudice the rights of the person suing out the act. The Court reiterated that the warrant of prohibitory injunction is an exceptional remedy, not a normal remedy, and thus should only be interpreted in a restrictive manner. As per established case law, a court should authorise the issuance of such a warrant where:

1. The applicant has, on a prima facie level, an objective right to stop the defendant from doing anything which can cause him harm or prejudice him in any way; and
2. The warrant is required for the preservation of the applicant’s right. Therefore, for example, if the matter or act complained of can be resolved following a judgement on the merits, this second element would not subsist.

These two elements are cumulative therefore the person suing out the warrant needs to prove both for the Court to accede to his request.

Turning its attention to the first element, the Court noted that at this stage of the proceedings, it was not up to it to determine whether either party is right or wrong. In fact, an applicant in whose favour a warrant or prohibitory injunction is issued is obliged to file an application on the merits of the case within twenty days from the issuance of the warrant. In the case at hand, the Court noted that the Plaintiff has every right to ensure that no excavation works take place at a distance that is less than the minimum prescribed by the Civil Code.

As to whether or not such excavation works were indeed to take place at a closer distance, the Court cannot merely rely on declarations made by the Plaintiff in his application. It is the responsibility of the Plaintiff to show that his concern is real and not merely based on suspicions therefore some form of proof is to be presented to the Court to further substantiate the claim being made. Without going to the core of the claim, the Court noted that on the basis of the development plans presented by the Plaintiff with his application, a reasonable fear that excavation works would lead up to the party wall existed. In addition, the Court further noted that the Defendant also intended to make certain apertures in the party wall which in terms of article 425 of the Civil Code could not be done without the consent of Plaintiff. In this regard, the Court noted that it was clear that the Plaintiffs consent was not forthcoming. Therefore, the first element for the issuance of the warrant subsisted.

Moving on to the second element, the Court explained that not every prejudice or disturbance would merit the issuance of a warrant of prohibitory injunction. Reiterating established principles, the Court noted that any prejudice or disturbance meriting the issuance of such a warrant should be such that would cause damage to the applicant, leaving him with no other alternative remedy or an unproportionate remedy. With regard to the second element, the Court is to determine whether the right being vaunted by the applicant would be lost forever, without the issuance of the warrant. Therefore, any damage or prejudice which may be easily remedied by a favourable judgment of the court, or through monetary compensation would not be sufficient for the issuance of the warrant of prohibitory injunction. In the case of IWT Group Malta Ltd vs Direttur Generali Kuntratti et, the court held that generally, a warrant of prohibitory injunction would not be issued were the right vaunted by the applicant is one which refers to quantifiable damages. The Court noted that in the case at hand, the rationale behind article 439 of the Civil Code is to ensure that no damage is caused to neighbouring properties whenever excavation takes place. As held in the case of Saviour Brincat et vs Salina Estates Limited et, article 439 of the Civil Code creates a juris et de jure presumption of damage therefore it is imperative that the minimum distance prescribed is respected. The failure to maintain such a minimum distance in itself would constitute damage in terms of the law.

Taking into account the above principles Court was satisfied that even the second element subsisted and therefore it, ordered the issuance of the warrant of prohibitory injunction as requested by the Plaintiff.

This report was first published in the Malta Independent.