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The Court of Appeal declares appeal null after it failed to ask it to revoke or reform the first judgement. This was held by Mr Justice Anthony Ellul in Bank of Valletta plc -v- Kummissarju għall-Informazzjoni u l-Protezzjoni tad-Data u Malta Public Transport Services (Operations) Limited, decided on 5 October 2018.

The Bank appealed from the Information and Protection of Data Appeals Tribunal decision which had decided on a case when the Bank had erroneously paid twice the Malta Public Transport Services employees.

The bank had the employees’ data including names, IBAN number and amount of payment. According to Article (2) of the Data Protection Act, data can be processed if it is within the legitimate interest of the controller, in the case Public Transport Services or else third parties, in this case BOV. EU member States give either a restrictive interpretation to this or else a wider interpretation.

It is within the company’s and the Bank’s interest to retrieve the extra monies deposited in the employees’ accounts, however, the company did not take action. The UK Information Commissioner’s Office gave examples of what is “legitimate interest”. The Tribunal disagreed with the Commissioner, since the employees could take advantage of the situation, something the law is not intended for anyone to abuse the system.

The Information and Data Protection Commissioner filed an appeal from the Tribunal, alleging that it had interpreted Article 9(f) incorrectly, since the extra payments were the bank’s mistake and because the Tribunal was following the UK guidelines on cases of debt recovery, which is different from this case. It was also argued that this creates a dangerous precedent.

The Bank filed its reply saying that the appeal is null and void, since there is no request for the Court of Appeal to revoke or reform the Tribunal’s ruling and that an appeal is limited to a point of law.

Mr Justice Ellul, analysed the facts of the case, where the evidence showed that in January 2014, the bank changed its system to SEPA, however, it affected some double payments totally to €181,000. The bank began an exercise to collect this money by sending a letter to the employees, asking them to refund the monies. In fact, they collected circa €127,000.

124 employees failed to refund the bank and according to law, the bank had a right to collect the outstanding €54,000. The bank asked for the details of persons concerned from the company, but this was refused on the ground of data protection. The Commissioner disagreed with the company and ordered them to release the information to BOV.

Data protection is intended to protect the process of private information. However, there are exceptions to this, which exceptions are to be interpreted narrowly according to the authors of Data Protection Law and Practice.

However, before entering into the merits of the case, the court had to deal with the pleas that the appeal is null and void. The appellant asked the Court of Appeal to declare that the bank has no judicial interest in the request and not to process any personal data, and for the court to give its direction on the issues raised.

Mr Justice Ellul quoted from Joseph Buttigieg -v- Malcolm J Naudi et noe, wherein it stated that an appeal required that the object of the appeal be determined in the application. Article 789(1) of the Code of Organisation and Civil Procedure dictates those circumstances under which a plea of nullity may be made, one of which, when the act is defective in any of the essential requisites expressly prescribed by law. The proviso of that article allows for remedies in such cases, such as filing an application asking to approve a correction.

In this case, the Court of Appeal noted that there was no request to revoke the Tribunal decision as outlined in Article 143 of the Code, but merely limited it to a declaration. The Commission did not ask for a correction and therefore, the Court had no choice but to declare the appeal null.

Dr. Malcolm Mifsud


Mifsud & Mifsud Advocates 

This article may also be accessed on Malta Today

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