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Although it is a well founded principle within our law that the exercise of a right cannot result in responsibility for damages, the right must not be exercised abusively nor outside the limits of the law. When a person vexatiously exercises such a right, such as the right to the issuance of precautionary warrants, the law provides for the payment of damages to the injured party. This was explained by the First Hall Civil Court in the case of Grech et. vs Falzon presided by Hon. Justice Silvio Meli on the 22nd of November 2018.

The case concerned a request by the plaintiff, asking the Court to declare that the precautionary warrant filed by the defendant had been done in an abusive manner, and to liquidate and award damages to the plaintiff for the financial loss suffered by their business when the bank stopped all their banking facilities due to the aforementioned warrant.

The Court heard how the plaintiffs, a married couple, had bought a house and garage from the defendant and in the same contract had borrowed money from him. The Court then heard how there were also other negotiations that took place between the couple and the defendant and their companies.

Nonetheless the plaintiff maintained that as far as the monies that had to paid to the defendant, there were no outstanding monitory fees and that they felt that the precautionary warrant was simply filed to put pressure on the plaintiff and cause him harm.

The Court then considered the defendants’ plea that the precautionary warrant that was filed was not done vexatiously and that he was not the only party involved in the filing of the warrant.

He also pleaded that in a separate court case between the parties it had already been explained by him to the Court that all outstanding fees were indeed paid by the plaintiffs. It was also pleaded that all damages alleged by the plaintiffs had to be backed up by proof.

The Court then cited a number of judgments, including the case of Spiteri vs Camilleri (1992), where it was explained that the right to the remedies created by law cease where the abuse of such rights begin. Quoting jurist Baudry-Lacantinerie, the Court stated that whoever acts in mala fede should be condemned to pay damages.

The Court considered that Article 836(8) of Chapter 12 of the Laws of Malta deal precisely with situations where a party asks the court for damages in cases of a vexatious filing of a precautionary warrant against them and lays down situations where the Court should award such damages. The Court held however that these damages should not be limited to these situations, and that damages can awarded in all cases where there is a  breach of the degree of responsibility laid out in articles 1031 and 1032 of the Civil Code. Therefore, in cases where a precautionary warrant was filed in a negligent manner and without the care of a bonus pater familias, damages should be awarded.

The Court stated that, when called as a witness, the defendant verified that the plaintiff did not owe him any monetary debt and neither did he have anything to collect from him. Due to this statement the Court concluded that the precautionary warrant was indeed requested in an abusive manner and it therefore accepted the first plea by the plaintiffs.

Nonetheless, the Court explained that it could not accept the rest of the pleas by the plaintiff concerning the liquidation of damages. It explained that although a precautionary warrant may have been abusively  filed, proof of all damage must be shown to the Court.

The Court condemned the plaintiffs for neither bringing proof of the damage itself nor the valuation of the damages submitted by them. All costs were however ordered to be paid by the defendant.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates

This article may also be accessed on Malta Today.  

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