This article focuses on Article 26(3) of the Gaming Act 1998 (Chapter 400 of theLaws of Malta). It follows an interesting recent decision by the Court of Appeal (CA) presided by Chief Justice Dr Mark Chetcuti, Rikors no 1037/07/2, on July 16, 2024, in the names: Joseph Falzon v Dragonara Casino Limited (today Stakes Limited).

The Act has some peculiar features including article 26 (3) which is the focus of this brief article. Referring to licensed casinos, this article requires a licensee to “ensure that persons who may have a problem of pathological gambling are not given access to the gaming area”. The Act does not define “pathological gambling”.

It is no secret that gambling often gives rise to well-known problems not only for the person who gambles but also for their family. These include financial difficulties, breakdown of relationships, and physical and mental health consequences, short and long term. 

In this case, the plaintiff, a gambler sued the casino company claiming he lost most of his money and became ruined financially as a result of gambling on its tables. He argued that the Casino employees knew that he was a “pathological gambler” and that he should not have been allowed to continue squandering his money in breach of the obligation just quoted.

The CA examined in detail the quality of the evidence brought by the plaintiff and the implications and requirements of Article 26 (3).

The CA held that this provision only applies where the gambler “would have sufficiently and clearly demonstrated that he is probably afflicted by a pathological condition towards gambling and that the operator was aware of the said condition”.

Some important findings of the court in summary:

(a) The circumstances of the case excluded that the operator could or should reasonably have noticed that the plaintiff was a compulsive gambler.

(b) The casino was in full compliance with all the legal requirements for recording gamblers’ identity, etc

(c) Plaintiff’s gambling activity never stood out and casino employees could not even remember him playing there.

(d) Plaintiff failed to show the amounts he had allegedly gambled (and lost) at the Dragonara Casino.

(e) It was established that the plaintiff also gambled at the Casino di Venezia and in other places.

Accordingly, the Court of Appeal found for the Casino and against the plaintiff who was also made to pay for all court expenses.

A confusing new law on estate agents

Just two short years ago, the Real Estate Agents, Property Brokers and Property Consultants Act of 2020 (Chapter 615) was passed by Parliament. It has now been replaced by a new law called the Property Market Agency Act, 2024, passed on 15 July 2024.

Evidently, laws are being written on a trial-and-error basis. This new law seems weak in substance but strong in creating new boards, directorates, managers, and detailing staff appointments, etc.

It creates a new Property Market Agency to act as the “regulator” of the property market, replacing the short-lived Real Estate Licensing Board set up in 2020. The new agency will also establish standards, licence agents and sundry intermediaries (including “occasional brokers”). Strangely, the Act establishes a new Register of Licence-holders specifically described as “internal” and cannot be freely accessed by members of the public.

One fails to understand the secrecy. The Minister of Justice has given himself extraordinary powers of intervention, seventies style.

The governing board may have up to eight members all appointed by the Minister.

The Executive Head is appointed not by the Board, but directly by the Minister who also involves himself in staff remuneration and appoints the Secretary to the Board.  The auditors are appointed by the Board “with the concurrence of the Minister”.

The Bill does not contain any specific provisions against conflicts of interest of Board members and others and has no specific rules or safeguards in favour of good governance.

And incidentally, in case you are wondering: (a) the Opposition had graciously supported the Bill, and (b) consumers hardly feature and no consumer rights are created or protected by it.

Indeed, in the long-winded seventeen-paragraph-long Article 3 which describes the multiple statutory duties and functions of this new Agency, the words “consumer” and “buyers” are alarmingly absent.

David Fabri LL.D., Ph.D. (Melit) has been a Lecturer in law at the University of Malta since 1994.

This interview was first published in The Corporate Times.