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The warrant of prohibitory injunction prevents a person or entity from doing anything that may be prejudicial to the person requesting such warrant. The applicant must prima facie prove that his rights were prejudiced to substantiate the issuance of such warrant. This was held in a judgement delivered by the Civil Court First Hall in Tonio D’Amato v. Soċjeta’ Ċentru Rekrejattiv Guy Boċċi Club Żurrieq et, on the 20th July 2021. The Court was presided over by Mr Justice Francesco Depasquale.

A bottega/bar was incorporated within the defendant club, and such bar was leased to third parties for a period of one year to three years. In October 2020, the applicant acquired the operation of this bar for a period of three and a half years. A few days later, the defendant club informed the applicant that the tender had been cancelled, thus the tender was being rejected.

In June of the following year, a tender for the same bar was issued, and the applicant placed a bid. His bid was rejected, and the management of the bar was allocated to another person. On the 30th June the applicant opened proceedings to interrupt the management of the bar, based on the agreement of the previous year. The applicant contended that the management of the bar should have been assigned to him.

The Court then proceeded to deliver its legal considerations upon this dispute. Mr Justice Francesco Depasquale commenced by referring to Article 873 of Chapter 12 of the Laws of Malta. This article essentially states that if a warrant of prohibitory injunction is issued, two main requisites ought to be satisfied. This warrant must be utilised as a means of protection from an act that is prejudicial towards the warrantor.

Also, the rights that are allegedly being violated must be proven on a prima facie basis. Here, the Court cited the judgement in names of ‘Mary Grace D’Amato v. Raymond Micallef et’ which was decided by the Civil Court First Hall on the 16th December 2016. This Court delved into the crucial elements for the validity of a warrant of prohibitory injunction.

Firstly, an act which is about to be executed must be prejudicial towards the applicant’s rights. The danger will be in respect of the right concerning the time necessary to obtain a ruling on the merits, the so-called periculum in mora. Secondly, the retention of the said act shall be necessary to protect this right. Recognising the applicant’s prima facie right, the degree of prejudice required as a basis for granting a warrant needs to be ‘irreparable’. This element for the issuance of the warrant is lost when the inconvenience or fault complained of can be removed, even by a mere decision after the case has been examined on the merits.

Thirdly, it needs to be prima facie evident that the applicant has that right. This Court also cited the judgement ‘Sonia Grech pro et noe v. Stephanie Manfré’ decided on the 14th July 1988, whereby it held that prima facie is an objective requirement, it does not depend on the discretion of the judge. What is essential and sufficient, for the issuance of an injunction, is to have a fumus boni iuris i.e., the likelihood of success on the merit of the case. Since, the injunction is a precautionary act that must be issued before ascertaining who is right, the warrant is issued in favour of who, at first glance appears to be right.

Fourthly, this Court in accordance with the judgement ‘Charles Mugliett v. Saviour Bonnici’ delivered on the 25th January 2005, claimed that the warrant of prohibitory injunction is a procedural legal device of an exceptional nature. Fifthly, the link that the warrant of prohibitory injunction creates should not be used to threat or coerce the respondent. This was upheld in the judgement ‘Avukat Dr John Gauci v. Direttur tal-Kuntratti’, which was delivered on the 18th July 2008. Finally, the requirements for issuing the warrant are not cumulative. Therefore, if any one of them does not arise, then the Court should reject the request for the issuance of such warrant.

Regarding the prima facie plea, the present court observed that the document purported by the applicant as having binding effects on the contracting parties, is not even a contract at all; it only discusses bar operating regulations. The agreement had no obligation to pay any rent to the applicant and there was no obligation on the defendant club either. The Court also observed that the defendant club, informed the applicant that the tender had been cancelled and subsequently, after the Club had re-issued another call, the applicant re-submitted his bid subject to the damage suffered by him. This was a clear indication that the applicant knew there had never been a previous agreement. Therefore, it did not appear that the applicant had any prima facie right to protect, and thus such requisite for the issuance of the warrant was not fulfilled.

With regards to the ‘irreparable’ prejudice, the Court observed that in the summons made by the applicant to the defendant club, he claimed that he had suffered damages, which damages, are not considered by our Courts as causing ‘irreparable’ prejudice. The element of irreparable prejudice was also absent from these proceedings; therefore, the Court rejected the request for the issuance of the warrant of prohibitory injunction and repealed its decree of the 30th June 2021.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates

The article is available on MaltaToday.

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