Any person, without the necessity of any previous judgment, in order to secure his or her rights may file precautionary acts, commonly known as precautionary warrants (mandati kawtelatorji). Such acts are issued and carried into effect on the responsibility of the person suing out the act, provided he or she shall have complied with the conditions prescribed by law for the issuance of the specific warrant.

Following the obtainment of such precautionary warrant, the applicant is bound to bring an action in respect of the right stated therein within 20 days from the issue of the warrant. Unless rescinded by the court or withdrawn, all precautionary warrants remain in force for a period of 15 days after the cause is definitively decided.

One such warrant is the warrant of prohibitory injunction. In broad terms, the aim of a warrant of prohibitory injunction is essentially to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.

A warrant of prohibitory injunction may also be demanded by a creditor to secure a debt or any other claim amounting to not less €11,647, with the aim of such warrant being to restrain a debtor from transferring or disposing of property. It may also be issued to restrain any person from taking any minor outside Malta and in the ambit of a suit for personal separation, where a spouse may request the court to issue a warrant of prohibitory injunction against the other spouse. The latter would restrain them from transferring or disposing any shareholding in any commercial partnership if such shareholding is comprised in the community of acquests, or against any commercial partnership in which the other spouse has a majority shareholding which pertains to the community of acquests, or against such other spouse from contracting any debt or suretyship which is a charge on the community of acquests.

In respect of the issuance of such warrants, the law is clear in that the court is not to issue any such warrant unless it is satisfied of the existence of two cardinal and cumulative principles, that is, that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie (therefore based on first impression) such person appears to possess such right.

These principles have been subject to copious court decrees wherein judges have elaborated on the interpretation thereof.

The aim of a warrant of prohibitory injunction is essentially to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant

In one such decree dated August 12, 2021, the First Hall of the Civil Court, presided by Mr Justice Neville Camilleri in the names ‘Emmanuel Zammit v Awtorità għat-Trasport f’Malta’, applicant Zammit requested the issuance of one such injunction, seeking to restrain the respondent authority from dismissing or terminating the applicant’s employment.

A letter dated July 21, 2021 to the applicant read: “By means of the present you are hereby being informed for all effects and purposes at law that your employment with the Authority for Transport in Malta is being terminated with immediate effect/ with effect from the 1st. August, 2021, and this for good and sufficient cause as contemplated in terms of law”.

The applicant was employed on an indefinite contract as an enforcement manager within the authority’s Enforcement Directorate.

He contended that as an enforcement manager, he occupied a senior post within the authority.

Due to what the applicant identified as changes in the operational structure of the authority, the latter sought to unilaterally amend his employment contract. The applicant’s resistance to such amendments, he argued, led to disciplinary action being instituted against him with the sole aim of having his employment terminated.

On the other hand, the authority argued that the applicant had no right to seek such a restraining order as the termination of his employment had already taken effect by virtue of the letter dated July 21. It also argued that with the present action, the applicant was effectively requesting the court to enter into the legitimacy or otherwise of the termination of employment, a matter which, the authority argued, fell squarely within the competence of the Industrial Tribunal and not of the said court.

Making reference to previous jurisprudence on the matter, the court considered that, in addition to the necessary elements as aforementioned, in cases where the issuance of such injunction is requested against the government of Malta or an authority established by the constitution or any person holding a public office in his official capacity, the court is to be satisfied that the authority or person against whom the warrant is demanded confirms in open court that the matter sought to be restrained is, in fact, intended to occur and that unless the warrant is issued, the prejudice that would be caused to the person suing out the warrant would be disproportionate when compared with the actual occurrence of the matter sought to be restrained.

After receiving confirmation under oath that the authority intended to steam on with the applicant’s termination of employment, the court disagreed with the authority that the applicant’s employment had already been terminated. In this respect, the court noted the ambiguity of the letter dated July 21, wherein it was stated that the applicant’s employment was being terminated with “immediate effect/ with effect from the 1st. August, 2021” .

The court also disagreed with the secondary argument proposed by the authority relating to its competence to determine this specific issue. It noted that with its decree, the court was not effectively entering into the merits of the termination proper but solely determining whether the constitutive elements for the issuance of the injunction were present.

However, the court found that prima facie, there existed no irremediable prejudice in that the applicant could always resort to the Industrial Tribunal for the latter to determine whether his termination was justified and request due remedy should said justification not result. It also concluded that the applicant had failed to satisfy the proportionality test. The court, therefore, proceeded to reject the injunction.

Keith Borg is a partner at Azzopardi, Borg and Associates Advocates.