Car rental entrepreneur and alleged kidnapper Christian Borg, whose driving licence was revoked after he accumulated penalty points on account of traffic contraventions committed by clients, has failed in his claim that the system breached his fundamental rights. 

Borg had acquired his licence in 2011, aged 18, subject to revocation if he accumulated 12 penalty points within three years.

A year after getting his driver’s licence, Borg applied for and acquired permits to operate a car rental business.

At the time relative to the breach of rights claim, Borg had 38 private vehicles for personal use and a fleet of 746 cars rented out to third parties, all registered with the Transport Authority.

In terms of traffic regulations, every time a client renting a vehicle from Borg’s company committed a traffic contravention, penalty points would be added to Borg’s licence even though he was personally not involved in any such offence. 

He would often pay the fine without contesting

Very often Borg would simply pay the relative fine without contesting the accusations. 

“Often it would be useless for me to contest the contraventions issued against me since… most of my clients are foreigners and would have already headed back home by then,” Borg subsequently testified. 

Between September 2011 and January 2016, 67 of those cases were withdrawn after Borg challenged them before the Petitions Board or because they were time-barred.

But between January 2012 and November 2018 he accumulated 6,810 points on his licence. 

In May 2012, he received a letter from the transport watchdog asking him to present his "counterpart driving licence" so that the penalty points could be recorded on it. 

Borg failed to do so and his driving licence was subsequently revoked. 

In 2013, he was informed by the Transport Authority that his licence was being withdrawn.

Borg’s lawyer wrote back, requesting a remedy and explaining that the situation he found himself in was not his own doing. 

In a judicial letter in 2014, Borg called upon the authority not to revoke his licence.

However, his request was turned down. 

He then pursued a two-pronged legal challenge by filing an action for judicial review of the authority’s decision and a constitutional case claiming that the system breached his fundamental rights. 

The first action failed since it was time barred and that conclusion was confirmed on appeal in 2018. 

Borg's attitude landed him in current situation - court

When delivering judgment in the breach of rights case Mr Justice Joseph R Micallef, presiding over the First Hall, Civil Court in its constitutional jurisdiction, observed that Borg’s claim about a lack of fair hearing was the result of his own attitude.

That attitude time after time had landed him in the current situation which he was trying to resolve through these constitutional proceedings, said the court. 

When in 2012 the authority summoned Borg to put his house in order and supply any explanation as necessary, he ignored that letter and chose not to go. 

When he did file petitions before the Petitions Board, a number of contraventions were dropped and Borg was cleared on several occasions when he appeared before the Local Tribunals. 

His claim about being denied access to due legal process stemmed from a lack of organisation in the running of his business, the court said.

Borg ought to have provided for internal systems of control to protect himself against the penalty points system, bearing in mind the large number of vehicles registered in his name even before 2017. 

Moreover, Borg knew that pending these constitutional proceedings the traffic regulations had changed to grant more effective remedies to people finding themselves in the same situation as the applicant. 

Borg also claimed that his rights were breached because he was found guilty of an act or omission that was not a criminal offence at the time it was committed.

It was not fair to impose penalty points on the registered owner of a rented vehicle when the offence was committed by the driver renting the vehicle. 

When renting a vehicle he could not tell how it would be used in future, Borg argued. 

In such cases, the law prescribes “vicarious liability” and the relative regulations came into force way before Borg started his rental business, observed the court. 

The regulations at issue were “clear and foreseeable”.

It was not for the court to tell the legislator what ought to be done but rather to apply the law and judge it according to its usefulness when determining whether such law resulted in a breach of a person’s rights. 

Regulations 'clear and foreseeable'

Borg’s complaint was not justified and if the court were to uphold his claims, it would allow him to shrug off responsibilities which stemmed from agreements he had entered into with third parties. 

Moreover, Borg could have avoided the penalties had he resorted to the remedies available in a timely, consistent and diligent manner, said the court, turning down the applicant’s claims.