Grounds for challenge or abstention of judges

In a judgement delivered on 13 April 2018 in the names Aluminium Extrusions Limited vs. Malta Industrial Parks Limited, the Court of Appeal examined the concept of impartiality of adjudicators in the context of a request for the Judges to abstain from delivering judgment.

Article 734 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) (the “COCP”), sets out an exhaustive list of instances on the basis of which a judge may be challenged or may abstain from sitting in a cause. In terms of this article, judicial recusal may occur for a number of reasons including, inter alia, if a judge is related by consanguinity or affinity in a direct line to any of the parties or if the judge has given evidence in the course of proceedings or will be called as a witness. Among the grounds set out in the aforementioned article, judges are also subject to challenge in the event that they have already taken cognizance of particular judicial proceedings, provided that that this shall not apply to any decision delivered by a judge not having definitely disposed of the merits in issue or having delivered judgment of non-suit of the plaintiff.

The question of recusal arose in Aluminium Extrusions Limited vs. Malta Industrial Parks Limited (application number 337/17) following plaintiff’s claim that the Court of Appeal, having already determined the question of retrial of the case in question, should abstain from determining whether or not the execution of the judgment subject to retrial could be stayed. Plaintiff argued that the Court had already taken cognizance of the case and that the same judges allowing the same judges to express themselves on the proceedings in question would impinge upon plaintiff’s right to a fair trial in terms of local and foreign human rights legislation.

The Court noted at the outset in determining whether plaintiff’s request to stay the execution of an existing judgment in terms of Article 823(2) of the COCP could be acceded to or otherwise, the Court was not called upon to assess and determine whether, for example, sitting as a bench, it had correctly applied the relevant laws or whether it had undertaken a correct assessment of the facts; rather, the Court was simply tasked with determining whether the conditions required in terms of Article 823(2) had been satisfied. Insofar as the subject matter of the application did not entail reviewing the merits of the judgment previously handed down by it, it did not follow that the Court had already taken cognizance of the same matter. In other words, while the decisions were factually linked, there was no link between the substantive issues being determined.

To the end, reference was made to the judgment in the names of Dr Richard Camilleri pro et noe vs. Dr Victor Ragonesi noe (decided on 10 December 1991) whereby it was held that where the Court of Appeal accepts an application for retrial of judicial proceedings, that same bench is best placed, both from a juridical and practical point of view, to determine whether execution of the judgment in question should be stayed or otherwise, given that that bench, so composed, already had sufficient knowledge of the facts of the case. Local jurisprudence in fact dictates that measures relating to the execution or otherwise of a judgment, can be decided upon by the same Court delivering the decision on the merits.

The Court continued by assessing the interplay between a request for abstention from delivering judgment and the right for proceedings to be tried by an impartial adjudicator in terms of Article 6 of the European Convention on Human Rights (“ECHR”). It held that although perceived partiality on the part of the adjudicator by one of the parties is relevant in determining whether or not such adjudicator should abstain from delivering judgment, the determining factor must be to undertake the test of objective impartiality (see here Lawrence Grech et vs. L-Avukat Generali, Constitutional Court).

In a judgment delivered on 9 January 2018 in the names Nicholas vs. Cyprus, in determining impartiality or otherwise of a Judge, the European Court of Human Rights noted that while the applicant was correct to fear partiality of the Judge on account of existing family ties between the judge and one of the parties, it did not follow that all family ties would immediately render a judge partial. By way of example, the same could not be said when a judge has blood ties with an employee of a law firm representing a party in proceedings, in which case an objective test, taking into consideration factors such as inter alia, the financial importance of the case, the nature of the family tie and any possible financial interest or potential benefit (and the extent thereof) which the relative may derive from the proceedings, would need to be undertaken in order to determine whether such ties warrant disqualification of the judge or otherwise.

In the words of Harris, O’Boyle and Warbrick: the existence of impartiality for the purpose of article 6(1) of the European Convention on Human Rights must be determined according to both a subjective and an objective test, the latter capable of ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt as to such Judge’s impartiality. So therefore, while the test of subjective impartiality would entail considering whether the Court of Appeal held or manifested any personal convictions such as to cast doubt on its impartiality, objective impartiality dictates that regard must be also had to appearances, which may prove as important as the adjudicator’s own actions.

The Court of Appeal made extensive reference to ECHR jurisprudence which makes it clear that it did not necessarily follow that the requirements of a fair hearing automatically prevent the same judge(s) from successively performing different functions within the framework of the same civil case: the assessment of whether the participation of the same judge in different stages of a civil case complies with the requirement of impartiality requires a caseby-case assessment, regard being had to the circumstances and characteristics of the relevant rules of civil procedure applied to the case.

Plaintiff’s request was dismissed on account of the fact that not only were the judges neither objectively nor subjectively partial, but also on account of the fact that there was additionally no link between the substantive nature of the issues up for decision.

Dr Vanessa Gatt is an Advocate at GANADO Advocates.