Issue link: https://maltatoday.uberflip.com/i/1360420
maltatoday | SUNDAY • 11 APRIL 2021 15 THOSE who accept to be curators in actions may be held responsible for damages if they do not carry out their functions according to law. This was held in a decree de- livered by Mr Justice Toni Abela in Manuel and Victor Vella -v- Dr Charmaine Cherrett et noe on 30 March 2021. Heirs of Arthur Francis Alderton asked the court to allow them to represent JNF Charitable Trust in- stead of the Court appointed cura- tors and to also present a statement of defence. The Plaintiffs to the case are objecting on the ground that they tried everything at law to establish who are the heirs of the estate of the deceased. The application was filed at the end of the case when it was put off for judgement. The issue at hand is not on the merits of the case but on the court nominated curators of the heirs of Francis Alderton. The court pointed out that the appoint- ment of curators carried responsi- bilities on the curators. If they do not carry out their duty well, even if the plaintiffs do not pass on the correct information, could expose the curators to damages. This is due to the fact that there would be a breach of the principles of natu- ral justice of not hearing the other party. The curator is to defend the case the best that he or she can. Article 931 of the Code of Organ- isation and Civil Procedure reads: "931.(1) The court, upon mak- ing an order for the appointment of curators, shall issue banns to be posted up at the entrance of the building in which the court sits. (2) A copy of the banns together with a copy of the pleading or a summary thereof shall be served on one of the persons most close- ly related to the person to be rep- resented or in respect of whose inheritance the appointment of curators is demanded, and where no relations are known, such copy shall be served on some other per- son known to be or have been a friend of the person concerned. (3) Where no relation or friend as is mentioned in sub-article(2) is known to the person demanding the appointment of curators ,the court may order that instead of the service mentioned in sub-article (2) a copy of the banns together with a copy of the pleading or a summary thereof be published in the Government Gazette and in at least two daily newspapers at the expense of the applicant." The other article of law quoted by the Court was Article 936 of the Code of Organization and Civil Procedure (COCP), which states that the court appointed curator is to contact immediately the person he or she is representing and if the address is not known, they are to try to obtain it. The curator is to obtain information in order to be able to defend the interests of the person being represented. Article 931 lays down the proce- dure on how the court is to appoint a curator, while Article 936 lists the responsibilities of the curator. Mr Justice Abela held that the curators carried out their work diligent- ly. However, the issue at hand is if the Plaintiffs followed the pro- cedure for this situation to have been avoided. Curators are not nominated for Plaintiff to have an easier time in court and not have any opposition to their claims and neither is it a short cut. The Plain- tiff is bound to pass on all the in- formation they have and assist the curators to carry out their duties. The Court pointed out that in the Plaintiffs' reply that they were un- aware of the applicant's lawyer, Dr Christian Farrugia's involvement. The Court begged to differ as from the evidence it emerged the Plaintiffs had corresponded with Dr Farrugia and met up with him on this case. Dr Farrugia was also in the list of witnesses. The Plain- tiffs should have notified Dr Farru- gia with the banns or at least they should have informed the Curators of his involvement. If Dr Farrugia was notified with the banns, it would be up to him to accept rep- resentation and therefore, there could have been a chance for Dr Farrugia to proceed with the case as the representative. The Plaintiffs certainly got to know of Dr Farrugia when he was mentioned by a witness. The law does not limit when heirs can take over the case. Article 810B of the COCP mentions that any person can join the case if he or she has an interest, before the case is left for judgement. The case was put off for judge- ment, but the statement of defence reserved the right to file additional pleas. The court held that it would allow Dr Farrugia as representative of the heirs to file further pleas at this late stage of these proceedings. If the curators did not reply to the claim, the situation would have been different. The court moved to release the curators from their duties and al- low Dr Farrugia to represent the heirs and to present new pleas to the action. 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