Issue link: https://maltatoday.uberflip.com/i/826629
56 maltatoday, SUNDAY, 21 MAY 2017 Opinion T he First Hall of the Civil Court ruled that for prescription to be interrupted a defendant must be notified of the judicial act, which must not simply be filed in court. This was held in a judgment handed down on 16 May, 2017 by Mr Justice Joseph R. Micallef in a case Inna Said -v- Massimo Bonello, Alberto Sammut and Motor Insurance Pool. The case centres around a traffic accident that took place on 2 December, 2008, in which Ms Said suffered injuries following a crash with a bus. She asked the Court to award her damages for the damage caused to her vehicle and the injuries she sustained as a direct result of the accident. At the time of the accident the bus was driven by Massimo Bonello, but Albert Sammut owned the bus, which was insured by the Motor Insurance Pool (MIP). On the other hand, the defendants did not accept responsibility and raised the plea that the action was time barred in terms of Article 2153 and 2154(1) of the Civil Code. On 25 April, 2009, Bonello was notified with a judicial letter sent by the plaintiff, holding him responsible for the accident. The same letter was also notified to MIP. From that judicial letter, there was correspondence between the parties in order to investigate whether there should be a settlement. MIP asked the plaintiff to be examined by their doctor. The plaintiff filed two further judicial letters, on 4 April, 2011 and 22 March, 2013 addressed to Bonello and MIP, however, only MIP was notified. No judicial letter was sent to the other defendant, Albert Sammut. There were criminal proceedings against Bonello and on 18 December, 2013, he was found guilty of driving without being covered by an insurance policy and was negligent in driving. Then the civil action was filed on 22 November, 2013. Mr Justice Micallef, then examined the plea of prescription under Articles 2153 and 254 of the Civil Code. It is the plaintiff that chooses the action against the defendant and the defendant may raise the pleas. It is up to the Court to decide whether the particular article with regard to prescription fits the circumstances of the action. This should be done before evidence on the merits of the case is produced. With regard to damages cases, there are three forms of prescription. The first is an action for damages following a criminal act, the second being an action derived from an act and the third being an action derived from the non-performance of a contractual obligation, which prescriptive period is of five years. In this case where the alleged damages were caused in a traffic accident, Article 2154 of the Civil Code applied. This means that the criminal offence which is in pay is found in Article 226 of the Criminal Code, which has a prescriptive period of two years, which period is also applied in civil actions. According to Article 2137 of the Civil Code, the prescriptive period starts to run from when the action can be instituted. In this case from when the damage was caused. According to Mohnani -v- Stivala decided on 11 June, 2010, the prescriptive period starts from when it can be instituted irrespective of the state the plaintiff is found in. The accident took place on 2 December, 2008 and a judicial letter was delivered to Massimo Bonello on 25 April, 2011, therefore within the two year period. Bonello argued that the judicial letters were not valid since the plaintiff used her maiden surname and therefore, different from her present surname. The Court disagreed arguing that she had indicated her identity card number. Furthermore, the prescription would be interrupted even if there is a material error in the judicial letter. However, from the oaths of the case Bonello was not notified of the judicial letter prior to the filing of the action. The plaintiff could not rest on the fact that MIP were not notified. From the evidence produced there was no direct contact with Bonello and he was only notified of the first judicial letter but not the subsequent letters. The same can be said for Sammut. It was only MIP who received the three judicial letters. The plaintiff also argued that once MIP asked her to go to their doctor then the insurance company was accepting responsibility of Bonello. Here also the Court disagreed since the insurance company was merely making its verifications and not a declaration of responsibility. The Court then declared the action as time barred and refused the action. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application entitled 'Proposed construction of two additional dwelling units at roof level of existing building' was turned down by the Planning Commission. Essentially, the drawings show the proposed introduction of two units on the roof of a three storey building in Triq Sant Ubaldesca, Paola. The Commission however found that the proposal went against Policies U02.3 and UO2.4 of the Strategic Plan for Environment and Development. Indeed, the Commission specified that the structural additions 'would adversely affect the setting of the Urban Conservation Area (UCA) and detract from the traditional urban skyline' even though the proposed extension would have been receded from the building line. Indeed, it was highlighted that the proposed setback f loor is higher than the existing committed prevailing height and 'does not respect the context of the area.' As a reaction, the applicant lodged an appeal before the Environment and Planning Review Tribunal. In his submissions, the applicant argued that the designs showed a proposed 'setback from the street facade and thus won't be visible from the street'. Referring to the properties on the other side of the road, appellant pointed out that the development was of a similar height. In reply, the Authority observed that in the applicant's case, the UCA boundary ran 'across the middle of the street'. This meant that the applicant's property was subject to a regime which had to be distinguished from the corresponding policy framework relative to other properties across the road. As a result, the Authority held that the buildings across the road were not tantamount to a justified commitment. It was further underlined that the setting of the Urban Conservation Area and its skyline are to be protected 'by not allowing such high buildings'. Reference was also made to Policy P39 of DC2015 which states that 'the setback from the facade must never be less than that of the committed adjacent properties on one or both sides, where applicable'. In the given circumstances, no setback f loor could be allowed since the applicant's site was not bounded by similar commitment. (As a fact, the adjacent third party properties were built on one level.) In its assessment, the Tribunal observed that new development within Urban Conservation Areas is regulated by Policy U02.3 of the Strategic Plan for Environment and Development, which relies on the principle of a 'context driven approach' in as far as building heights are concerned. The Tribunal also referred to Policy P39 of DC15 which in turn provides that the setback from a façade must never be less than that of the committed adjacent properties on one or both sides. In this case, the Tribunal felt that the adjacent properties did not provide the required commitment to justify the proposal. Against this background, the appeal was rejected. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law UCA roof extension rejected Robert Musumeci In UCAs, the setback from the façade must never be less than that of the committed adjacent properties on one or both sides Malcolm Mifsud Notification of judicial letter essential to interrupt prescription