Issue link: https://maltatoday.uberflip.com/i/697149
49 maltatoday, SUNDAY, 26 JUNE 2016 Opinion T he Court of Appeal presided by Mr Justice Anthony Ellul held that the appeal lodged against an arbitration award was null and void as the grounds of appeal were not points of law. This was decided on 17 June, 2016 in Euroshops Limited and Maurice Gruppetta –v- Attard & Co (Industrial) Limited. In their statement of claim the plaintiffs asked that the arbiter would order Attard & Co to pay €16,469, together with commissions emerging from a consultancy agreement of October 2008 for adverting and sales from EDCO to Malta and Libya, amounting to €20,000. In their statement of defence Attard & Co argued that Mr Gruppetta was not authorised to sign on behalf of Attard and Co an agreement with EDCO Eindhoven BV. This agreement was terminated. Furthermore, the defendant claimed Euroshops had purchased merchandise from the defendants, but failed to pay. The Arbiter on 5 September, 2012, upheld the plaintiffs' claims and ordered Attard & Co to pay and that the parties were to share the costs. Attard & Co appealed the award on the ground that the arbiter discarded a legal point that they had a right to terminate the contract only for a valid reason, as indicated in the agreement itself. The plaintiffs replied by saying that the grounds of appeal are not a point of law. The Court analysed the first plea of the appeal and explained that civil appeals are part of the Maltese legal system. The party who loses a case has a possibility to appeal, not only on the ground that the judgement contains mistakes on the law or on the procedure, but on a wide range of grounds. However, the Court noted that the law does impose some limitations, as for example the time in which they are to appeal and the difference between partial judgments and definitive judgements. Normally there are restrictions on appeals from Tribunal decisions in that they would be limited to points of law. If the law is silent on whether there is a right of appeal, then it should be considered that the right exists. On the other hand if the law prohibits a right of appeal, the court should raise the issue itself and declare that it has no jurisdiction to hear the case. Article 70A(1) of the Arbitration Act restricts the right of appeal in voluntary arbitration to "a point of law arising out of a final award made in the proceedings". Then Article 70C(1) states: "A party to mandatory arbitration proceedings shall have a right of appeal to the Court of Appeal both on points of fact and on points of law arising out of a final award made in the proceedings." In this particular case the arbitration was a voluntary one and therefore was restricted on a point of law. Article 70A(3) lists the points of law the Court of Appeal may decide on. James Leabeater in his book Civil Appeal: Principle and Procedure wrote: "Very often it is easy to identify a point of law. The necessary ingredients for a tort; the legal consequences of a frustrated contract; whether a contract breaker is liable to account for profits he has made from his deliberate breach of contract; all these are legal questions. More difficult to identify are issues of application: how to decide whether particular facts satisfy a legal test. In some circumstances that may amount to a pure question of fact. In other circumstances, the manner in which the legal test is applied may be or include a question of law. In others – perhaps most – the decision will mix different questions of law and fact." Therefore, the English Courts have decided that issues on whether there was a breach of a contract is a question of fact and not of law. The Maltese Courts have decided in the same manner as in Elmo Insurance Services Ltd –v- Joseph Bonnici decided on 20 October, 2003. This is similar to the present case. In fact the appeal application mentioned that the arbiter ignored the legal right of a party to terminate a contract for valid reasons. In fact they quoted from the agreement that the company could terminate at any time in the event that the appointment of the company is for any reason terminated by EDCO through no fault of the company. The application then makes reference to evidence produced. The Court commented that the appellant company failed in keeping to Article 70B of the Arbitration Act. It is the appellant that has to identify which point of law mentioned in the decision is being challenged and which is the correct interpretation of the law. This did not take place. The Court then moved to uphold the plea that the appeal application is null Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Appeal from an arbitration award must be limited to legal points T he Malta Environment and Planning Authority gave permission (referred to here as 'second permit') for an amended application to construct additional f loors over and above a multi-storey complex in St Paul 's Bay covered by a previous permit. Having said that, the previous permit was expired at the time of the second decision. Furthermore, no construction was undertaken as yet. Following the issue of the second permit, a number of registered third party objectors filed an appeal before the Environment and Planning Review Tribunal, requesting revocation of both the first and second permits. In fact, the objectors argued that the second permit was issued on the basis of a previous permit containing blatant inaccuracies. It was inter alia alleged that the site profile indicated in the first permit was 'false, misleading and fraudulent'. It was also observed that in the second application (now subject of this appeal), the applicant had shown a different site profile from that indicated in the drawings attached to the first permit. The appellants thus insisted that 'the amended drawings are incapable of being sanctioned since the original process and decision was based on information which was false, misleading and fraudulent and therefore any subsequent treatment of the application is null.' Additionally, the objectors recalled that the Authority had issued the second permit notwithstanding a pending request from their end to revoke the previous permit. Concluding, the objectors maintained that the five-storey development is located in a supposedly 'villa area' where policies permit up to two habitable f loors. On his part, the case officer underlined that the Authority felt that it should not proceed with the revocation request, which was made independently from the permit subject of the appeal, stating technical reasons to justif y its position. It was explained that an official survey was carried out and the architect had rectified all previous inaccuracies through the second application. In its assessment, the Tribunal considered that the objectors were alleging that the Authority went on to approve the second permit (subject to the appeal) without first assessing their request to revoke a previous permit pertaining to the same site, containing fraudulent information. The Tribunal also found that the Authority had urged the applicant to address the detected inaccuracies during the processing of the second application (now, subject to the appeal) which however sought to rectif y an 'expired ' permit. Concluding, the Tribunal observed nonetheless that the Authority was wrong to endorse the applicant's amendments in relation to an expired permit. For this reason, the Tribunal held that the Authority acted ultra vires and went on to revoke the second permit. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree Robert Musumeci Of expired permits Malcolm Mifsud mmifsud@mifsudadvocates.com.mt must be limited to legal points mmifsud@mifsudadvocates.com.mt must be limited to legal points must be limited to legal points YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt Applicant was urged to address the detected inaccuracies during the processing of the second application