Issue link: https://maltatoday.uberflip.com/i/1516790
12 maltatoday | SUNDAY • 3 MARCH 2024 LETTERS & LAW Letters to the Editor Law Report Right of reply: Steward and SLAPP STEWARD Health Care International (SHCI) wants to clarify the merits of the facts and arguments made in the article by Matthew Vella published in MaltaTo- day on Sunday 25 February 2024, and on maltatoday.com.mt on Wednesday 28 February 2024, titled 'Malta can refuse Steward SLAPP: EU Court opinion in Real Madrid defamation. This is in no way a credible or compa- rable scenario. Our case against MaltaToday is not a SLAPP. Steward International brought the case with honest inten- tions and, despite making journalists aware of the truth of the matter, these wholly inaccurate allegations continue to surface. This is simply a violation of basic jour- nalistic duty and principles and therefore subject to our defence in court. Steward Health Care International Madrid, Spain Daylight robbery through an extra storey on a Sliema hotel THE photo accompanying this letter shows the actual top floor of an 11-storey hotel in Tony Nicholl's Street, Qui Si Sana, Sliema indicating that a possible construction of another floor is in the making. The hotel's small turret ceiling has been removed some days ago and an iron frame has been built over all the rooftop area. Is this going to be built, thus obstructing the last rays of sunlight that can pass onto the inner yards and terraces behind this high rise? Has this new floor been sanctioned? Why are there no public Planning Au- thority's notices stuck to the hotel's façade regarding this new construction? Residents behind the hotel in Hughes Hallet and Locker Streets have already been robbed of all winter sunlight that used to reach their yards and terraces when the hotel built (and apparently later sanctioned) three extra floors some years ago. Obviously, residents were ignored. With all the recent talk about con- struction constraint and control are such regulations, as proposed by the recent much publicised public inquiry, overrid- den and sanctioned in certain cases? Are we residents to keep literally suffering the environmental consequences caused by daylight robbery without any State defence? Charles Xuereb Sliema Light pollution from prison flood lights ON my daily commute, back home on the Marsa-Hamrun bypass I cannot but notice the strong light emanating from the Corradino Correction Facilty floodlights. From a distance, the prison lights are a bright splash on the skyline. I can understand the need to have floodlights on for security purposes. But cannot these floodlights have some sort of shields to prevent unnec- essary spillage of light into the night sky? The light pollution from the prison is too much in my view and can be minimised by the proper use of intel- ligent lighting technologies that allow adequate visibility at night for security purposes, while respecting the sur- rounding environment. D. Farrugia Paola WHEN arguing for a retrial, the ele- ments of a retrial must all exist. This was held by the Court of Appeal in Paul and Carmen Caruana et vs Plan- ning Authority and Simon Chris Enri- quez, on 28 February 2024. The Court of Appeal was presided over by Mr Justice Lawrence Mintoff. This judgment follows a retrial ap- peal lodged by Enriquez after a Court of Appeal judgment delivered on 11 January 2023. The Court of Appeal had confirmed a decision given by the En- vironment and Planning Review Tribu- nal of 28 April 2022. The Court analysed the facts of the case, where the Planning Authority had approved a development appli- cation of Enriquez for an abandoned building in Gozo. The Appellants had appealed this decision and the Tribu- nal upheld their appeal. Enriquez filed an appeal before the Court of Appeal and requested that it revoke the Tribu- nal's decision. The Court of Appeal in its judgment explained that the main issue was whether the application was an inter- nal development or not. The definition of an internal development is clear in that it is a development behind a build- ing or amongst other buildings that are not facing a schemed road. The Tri- bunal held that if the development is not facing a schemed road, then it is an internal development. Enriquez argued that the proposed development has access from a public road. The Court of Appeal had agreed with the Tribu- nal when it pointed out that the defi- nition of a road laid down in the De- velopment Planning Act, depends on the local plans and the guidelines. The Court held that access to the proposed development is not direct. Therefore, the policies on internal developments should be applicable. The Court of Ap- peal upheld the decision of the Tribu- nal. A retrial application followed where Enriquez asked the Court of Appeal presided by a different judge to revoke the Court of Appeal's judgment, claim- ing it was conflicting and based on er- roneous facts. The new Court of Appeal held that Enriquez based the retrial application on Article 811(h) of the Code of Or- ganisation and Civil Procedure, which states that a retrial may be entertained if the judgment is conflicting with a previous judgment given in a suit on the same subject-matter and between the same parties, and constituting a res judicata. Enriquez explained that there was another Court of Appeal judgment which dealt with the same property, where it applied Policy P6 of DC15 with regard to the widening of a side garden. The Planning Authority held that this article of law had a number of elements to it – the judgment must be contradictory to other judgments, the parties must be identical, the decision must be on the same merit and there must not be the plea of res judicata. The PA argued that the second and third elements do not exist. PA held that the two judg- ments were dealing with different de- velopment applications. It is for this reason that the policies applied to were different. The Objectors also filed a reply to the retrial application, wherein they agreed with the PA in that the two judgments Enriquez cited in his application dealt with different issues and he confused the different applications together. The Court of Appeal agreed with the PA and the Objectors, because not all the elements resulted as being present. Enriquez also referred to Article 811(i) of the Code of Organisation and Civil Procedure (COCP), because the Court of Appeal dealt with the all the ground of appeal cumulatively and therefore, this led to contradictory statements in the judgment. The Court of Appeal held that after reviewing the judgment it could not find anything which was contradictory. The last ground of the retrial was based on Article 811(l) of the COCP, which states that judgment was based on false evidence. The Objectors held that for this article to be successful, the erroneous fact should not have been either contested or discussed and de- cided by the Court. The error should result from the acts of the case. Here again the Court of Appeal agreed with the PA's reasoning and turned down this ground and the whole retrial application. The elements of a retrial must be cumulative LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates