A Maltese court “declined” exercising jurisdiction in an action filed by an insurance company that is currently sued by victims of a tragic open-top bus crash, arguing jurisdiction lay with the British courts which were dealing with “similar and parallel” claims. 

Mapfre Middlesea plc had filed the action before the local courts in March 2021, one year after actions for damages had been filed by three of the victims before the courts in England and Scotland. 

The local lawsuit, an offshoot of those foreign proceedings, concerned the incident which took place on April 9, 2018 when an open-top double-decker bus, operated by City Sightseeing Malta Ltd, hit a low-lying tree branch along Valletta Road, Żurrieq. 

Two of the passengers seated on the upper deck died on the spot. Several others were injured, some in a grievous life-changing way. 

The incident resulted in criminal charges against the bus driver as well as the directors of the tour operating company. 

In March 2021, a magistrates’ court discharged all four directors, concluding that only the bus driver, Charles D’Amato, had a case to answer.

Criminal proceedings in his regard are ongoing. 

Meanwhile, three of the victims filed actions for damages before the British courts, with claims running into millions of euros. 

The insurance company filed separate proceedings before the First Hall, Civil Court against the bus operating company and the driver, pointing out that the insurance policy it had issued in respect of the vehicle involved in the crash afforded limited cover. 

Policy limited to €6 million in case of death

That policy, covering the period between December 2017 and November 2018, was limited to just over €6 million in case of death, irrespective of the number of victims. 

In this case, an adult passenger had ended up quadriplegic, another man sustained life-changing injuries while a six-year old child suffered severe brain injury. 

The insurance company requested the court to determine how the limits of liability were to be apportioned and whether the relative damages were to be paid out in proportion to the individual claims or in another manner directed by the court. 

The company argued further that since the driver was allegedly under influence of drugs at the time of the incident, cover was expressly excluded in terms of the policy. 

The three victims, represented by Maltese lawyers, intervened in the proceedings before the Maltese court and raised the plea of jurisdiction, arguing that the Maltese court could not decide the case since the matter was pending before the foreign courts. 

When delivering judgment, the court, presided over by Mr Justice Toni Abela, observed that the case stemmed from a decision by the High Court of Justice Queen’s Bench Division in December 2020, rejecting a request by the insurance company for a reference to the European Court of Justice. 

The requested reference was to determine the issue of apportionment of monies to the victims. 

That court stated that, “accepting that the terms of the policy will be subject to Maltese law, which will (in turn) need to be interpreted consistently with EU law, that is something that the court will be able to do…”

Indeed, those courts were “firm in their determination to continue to hear the case,” observed Mr Justice Abela. 

Victims’ right to sue in county of domicile

The crux of the issue lay in European Parliament Regulation 1215/2012 which dealt with the recognition and execution of judgments on civil and commercial matters, granting victims the right to sue for damages in their country of domicile. 

This is what the victims of the bus crash had done. 

The court could not ignore the fact that there were proceedings before the foreign courts involving third parties who subsequently requested intervention in the case filed before the Maltese courts where the merits were “intimately linked”.

Those third parties - namely the victims - “doubtlessly” had an interest in the Maltese lawsuit as they were the beneficiaries under the insurance policy at stake, “if not directly, definitely indirectly,” observed the judge. 

The foreign proceedings had been instituted before the local case and the insurer had filed a reply and counterclaim in those actions abroad, contesting the claims “most forcefully”.

That left no doubt that the insurance company had submitted to the jurisdiction of the foreign courts, said the judge. 

EP regulation

Irrespective of that, however, the EP regulation stated clearly that, “where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court”.

In light of that regulation, if the Maltese court were to pronounce itself on the applicant’s claims, it would be interfering in those foreign lawsuits which were proceeding in a “methodical and orderly” manner. 

Indeed, issues concerning limitations on the indemnity and the manner of distribution of funds were to be dealt with in preliminary hearings scheduled in the coming months, Abela observed. 

The English courts had asserted their jurisdiction “in the most clear and unequivocal manner” and, therefore, the court declined to exercise its jurisdiction over the “similar and parallel” claims.

It opted to decline rather than suspend proceedings, because if it were to do so “it could potentially sow confusion in those foreign proceedings which deserve to follow their orderly course in the interest of all parties concerned”.

Lawyers Juliette Galea, Peter Fenech and Mattia Felice represented the victims. Lawyer Alessia Zammit McKeon assisted the bus operator. Lawyers Francois Dalli and Marion Camilleri assisted the bus driver.