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maltatoday | SUNDAY • 9 APRIL 2023 15 LAW CLASSIFIEDS THE court must interpret the law on the recusal of a judge strictly. This was held in a judgement in Mary Grace D'Amato -v- Luqa D' Amato et, delivered on 23 March 2023 by the First Hall of the Civil Courts presided by Mr Justice Robert Mangion. The case concerned a claim filed by the Plaintiff where- in she is asking the court to rescind a contract of sale of a garage which included in a separation judgement. The Defendant Luqa D' Amato asked that Mr Justice Mangion recuse himself because he was the judge that delivered the separation contract. This was based on Article 734(1)(d) of the Code of Organization and Civil Procedure. This read: "(1) A judge may be chal- lenged or abstain from sitting in a cause – (d)(i) if he had given advice, pleaded or written on the cause or on any other matter con- nected therewith or dependant thereon; (2) A judge may be chal- lenged or abstain from sitting in a cause when he has previ- ously taken cognizance of and expressed himself on the same merits of that cause when sit- ting as a judge in the Court of voluntary jurisdiction." A judge may be challenged only on the ground listed in Article 734 and these are in ex- ceptional circumstances. In this case the separation was decided by the presiding judge in this case. The Defendant ar- gued that justice could not be meted out, once the presiding judge is aware of the serious accusation the parties hurdled at each other during the sepa- ration case. The Court pointed out that the subject matter of this case, is with regard to a contract that had taken place after the sepa- ration and therefore, has noth- ing to do with the separation of the parties. Therefore, none of the circumstances mentioned in Article 734. The Court quot- ed a constitutional judgement Sandro Chetcuti -v- Avukat Generali decided on 12 July 2005, where there are instances where the protection of an in- dividual's fundamental human rights may prevail over gener- al procedural law. Therefore, there may be instances not cov- ered by Article 734 of the Code of Organisation and Civil Pro- cedure (COCP), but Article 39 of the Constitution and Article 6 of the European Convention may allow a remedy is the im- partiality of a judge may have to be protected. Mr Justice Mangion agreed that there may be exception- al reasons that a judge may be challenged for reasons not list- ed in Article 734. The challeng- ing of a judge is intended to protect the integrity of the ad- ministration of justice. In fact a judge is challenged when there is doubt that he or she will be impartial to the case they have in front of him/her. A judge would have taken an oath to be impartial and guar- antee his or her independence. In this case the Defendant de- clared that he has not doube of the impartiality and pro- fessionalism and integrity of the Court. The issue that the Defendant had was on the fact that in the separation case the Parties had made serious accu- sations to each other. There- fore, he is afraid that the Court may be bias of what was said in the separation case. The Court quoted from a European Court of Huma Rights judgement, Lindon Otchakovskylaurens and July -v- France decided on 22 October 2007: "There are two tests for as- sessing whether a tribunal is impartial: the first consists in seeking to determine a par- ticular judge's personal convic- tion or interest in a given case and the second is ascertaining whether the judge offered guar- antees sufficient to exclude any legitimate doubt in this re- spect... As to the second test, when applied to a body sitting as a bench, it means determin- ing whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even 9 appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impar- tiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objective- ly justified." In another judgement by the UK Court of Appeal Locabail (UK) Ltd -v- Bayfied, the Court said: "The mere fact that a judge, earlier in the same case or in a previous case, had comment- ed adversely on a party or wit- ness, or found the evidence of a party or witness to be unre- liable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be re- solved in favour of recusal. We repeat: every application must be decided on the facts and cir- cumstances of the individual case. The greater the passage of time between the event re- lied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be." The case in hand concerns a garage which was assigned to the Defendant in the sepa- ration, as long as he pays the Plaintiff €594.15 and continues to pay the bank. In 2021 the Defendant sold the garage. The Court held that it could not understand how it could be bi- as on this point of law and how he can be unduly influenced knowing who was responsible for the breakdown of the mar- riage, The Court then moved to turn down the challenged and ordered that the case continue. Strict interpretation of the law when challenging a judge LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates CLASSIFIEDS INFO @MEDIATODAY.COM.MT HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. 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