In order to ensure the effectiveness of a future judgment, the Maltese procedural system adopts what are known as ‘precautionary warrants’. A precautionary warrant enables the holder of a right to preserve what he claims is due to him until such right becomes executable after obtaining a court judgment.

Pending such judgment, the holder of such right may seek to institute a precautionary warrant against his debtor, in order to secure his rights which would be then confirmed through the final judgment.

Until such rights are acknowledged by the courts, there would be a likelihood risk that the person’s right would be ‘disposed’ of by the defendant in kawża.

The main legal norm in connection to the issuance of such warrants is that they must be accompanied by a contentious litigation suit. Failing this, the issuer would be exposing himself to legal penalties.

Among the list of precautionary warrants, we find the prohibitory injunction. This warrant is deemed to be the mightiest among its kind. Unlike other precautionary acts, which mainly seek to preserve assets, arrest air or sea vessels, seize assets or property, impede persons from departing the islands, the injunction prevents a person from doing a specific act.

The injunction is typically used in cases involving a development which is causing structural damage to an adjacent tenement, whereby owners of such would seek this injunction to prevent developers from carrying on with their works.

The successful issuance of such warrant, in such circumstances, would effectively mean that the developer in question must stall its works until the court pronounces a final decision on the matter. 

Past cases have shown that this injunction was sought, even for the most unusual cases – judgments are evidence of this. By way of illustration, this warrant was once requested as a mode to prevent a married man’s lover from entering the couple’s matrimonial home. Needless to say, the court had dumped such request.

This warrant was recently used in an identical abnormal situation – the applicants (a fishing company) sought to impede the local fishing authorities from releasing a school of bluefin tuna into the sea – ‘Fish and Fish Limited v Direttur Ġenerali Sajd u Akwakultura et’ decided by the Civil Court, First Hall on February 7, 2020.

An injunction is only to be resorted to as a last resort remedy

This case was the outcome of a prior e-mail that was sent by the Director General of Fisheries, whereby the plaintiff company was informed that the tuna in question was to be released in the sea.

The plaintiff company instituted procedures of prohibitory injunction as to impede the concerned authorities from releasing the fish. They claimed that they had bought the fish in question which had been previously caught legally – hence they claimed that they were the legal owners of the tuna. Consequently, the claimant company claimed that the director general’s decision was null and contrary to law. The claimant company demanded authorisation to place the tuna in their own fish farm.

The court discussed in detail the cumulative elements that need be established for it to accord the warrant.

Firstly, for such warrant to be granted, the court must be satisfied that the person who is suing out the injunction, prima facie (mad-daqqa t’għajn) possesses such right. For the court to establish this, it need not delve significantly into the merits of the case − it merely needs to examine, whether on the face of it, the claimant who is seeking the warrant is a possessor of such right. In fact, rarely are the cases where evidence about the merits of the case are heard before the court when hearing precautionary warrant suits.

Secondly, it must be shown to the satisfaction of the court, that if the respondent is not precluded from committing the act in question (in this case releasing the fish), then the claimant would be suffering irremediable damage. Irremediable damage essentially means that the damage that would be caused cannot in any way be remedied, except by the issuance of such warrant.

Strictly speaking, this second element ties with the principle that the injunction is only to be resorted to as a last resort remedy, including the fact that it cannot be resorted to as an alternative to other precautionary warrants that the law makes available.

Furthermore, an injunction may only be resorted to if the issuer requests the preclusion of an act, not as a means to get someone ordered to do something – it’s an obligation di non fare (to not do) not di fare (to do). The court deemed that, strictly speaking, the claimant company was merely demanding authorisation to place the fish in its own fish farm since this authorisation was not granted by the fishing authorities. Evidently, the claimant company was seeking this authorisation rather than preclusion of the release of the fish.

An injunction cannot be resorted to if the act that seeks preclusion has already occurred – the courts may not reverse what has already been done. The court observed that the Director General of Fisheries had already issued such decision and, in this light, the warrant in question could not be used to revert that decision.

When it comes to claims against the government, claimants need to satisfy an extra requisite – the court shall not issue any such warrant against the governmental authorities unless the authority against whom the warrant is demanded confirms in open court that the thing sought to be restrained is, in fact, intended to be done.

It must also be satisfied that unless the warrant is issued, the claimant would be suffering prejudice that, when calculated, would result to be disproportionate in consideration to the actual doing of the thing sought to be restrained.

In conclusion, the court observed that the fish in question were in an illegal situation, since it emerged that the claimant company had exceeded the prescribed tuna quota.

Moreover, none of the abovementioned elements were satisfied by the claimant company; therefore, the court rejected the request for the issuance of the prohibitory injunction.

Mary Rose Micallef is junior associate at Azzopardi, Borg & Abela Advocates.