State Advocate Chris Soler has said there is no law empowering or binding him to take legal action to recover funds lost to the now-annulled Vitals deal.

Moreover, it was in the public interest for him not to abuse his position by assuming powers not granted to him, argued Soler on Monday when making final submissions in appeal proceedings filed by the Opposition.

Last year Opposition leader Bernard Grech and PN MP Adrian Delia filed a civil action against the State Advocate, requesting the court to declare that as the “last man standing” and the “guardian of the state” he was to take legal action to recoup the €400 million allegedly defrauded through the hospitals privatisation deal. 

However, in July the First Hall of the Civil Court, presided over by Mr Justice Toni Abela, dismissed the Opposition’s arguments, ruling that if the State Advocate were to act independently to recover the defrauded funds, it would undermine democracy. 

The judge declared that although the State Advocate was independent and autonomous, he did not appear to have carte blanche to act upon his initiative, a decision the Opposition appealed. 

The Opposition filed an appeal which was heard on Monday.

“The State Advocate is the life buoy when nothing else is functioning,” argued lawyer Edward DeBono, assisting the appellants.

While proceedings were pending before the first court, the Vitals inquiry report was published by the media and criminal charges were pressed against a number of individuals over their alleged involvement in the Vitals deal. 

Those “developments” were flagged to the court by the applicants who requested the report and documents linked to the criminal proceedings be produced in evidence before Mr Justice Abela. 

But the court turned down their request. 

Those criminal proceedings followed in the wake of last year’s judgment by the Court of Appeal confirming the deal was tainted by collusion between Vitals and their successors Steward Healthcare and top government officials. 

Today’s case by the Opposition stemmed from that decision annulling the “fraudulent” deal, said DeBono. 

Those involved in the deal were to answer not only criminally but also civilly, by reimbursing the funds "defrauded" out of state coffers - which formed the basis for the Opposition’s case against the State Advocate.

“Some said that this is a vendetta. Not at all,” said DeBono, adding the State Advocate could not “sit pretty” and remain “inactive” but should instead act in the public interest.

“It is the law that imposed upon him the duty to act…. This is not a matter of some hidden agenda but precisely the agenda whereby the State Advocate must act,” stressed DeBono, highlighting the separation of civil and criminal proceedings.

“The State Advocate must act in the interests of justice so that the public may recover damages… and thus safeguard the Maltese nation and not other interests.”

However, the State Advocate himself questioned the appellants’ notion of public interest.

“If there’s any public interest in this case, is it not that of consolidating certain principles like the separation of powers and the rule of law? Isn’t it in the public interest for the State Advocate not to abuse of his powers?” countered Soler.

Rebutting each of the grounds of appeal filed by the Opposition, Soler argued the crux of the case was a specific point of law, namely whether the State Advocate could act in the manner expected by the appellants.

There were specific instances where the law empowered him to act of his own accord, while there were other instances, specifically allowed for by law when he could be instructed to act by some state entity. 

However, none of these two scenarios were covered by article 1051A which was the basis of the Opposition’s claims, he said, adding if the law intended that, it would have said so. 

As for the acts of the Vitals inquiry – which the appellants wanted to produce in evidence – those documents had no bearing on the point of law that was the subject matter of these civil proceedings, said Soler.

Moreover, although the judgments annulling the deal made reference to “top government officials,” there was no pronouncement against those officials.

“That falls within the competence of the criminal courts”, he said, asking whether the State Advocate should assume powers not granted to him by law because of the appellants' claims of “public interest”.

“Be you ever so high the law is always above you,” said Soler, citing Lord Denning to wrap up his arguments.

Lawyer Ian Borg, assisting the government as intervenor in the proceedings, added to Soler’s arguments, asserting that if the Opposition’s claims were upheld, the State Advocate would end up in “an alley of illegalities.” 

Moreover, any action requested by the appellants could negatively impact the legitimate arbitration proceedings currently pending internationally.

This is “dangerous territory,” warned Borg.

The case was adjourned for judgment in December.

Lawyer Nicholas Debono also assisted the appellants.

Lawyers James D’Agostino and Julian Farrugia assisted the State Advocate.