Article 266 of the Code of Organization and Civil Procedure lays down that a judgment which does not constitute a res judicata (a cause that has been adjudicated by a competent court and therefore may not be pursued further by the same parties) shall not be enforceable unless, on the demand of the interested party, such judgment is declared by the court to be provisionally enforceable.

A demand for such a declaration may also be made to an appellate court at any time prior to the delivery of the judgment on appeal. The court shall declare a judgment to be provisionally enforceable if it is satisfied that delay in the execution of the judgment is likely to cause greater prejudice to the party demanding the declaration than such execution would cause to the opposite party. However, the party against whom execution of a judgment declared provisionally enforceable under this article is sued out, shall, in case of reversal or variation of such judgment, be entitled to damages and interest.

In its decision of August 8, 2022, the Constitutional Court in the cause of Dr Naged Megally v. 1. Minister of Health; u 2. Celia Falzon as CEO and in representation of Mater Dei Hospital with the application of the aforestated article.

By judgment delivered on the 23 June 2022, the Civil Court, First Hall, sitting in it’s Constitutional Jurisdiction, the plaintiff had been declared as having suffered inhuman and degrading treatment in terms of article 36 of the Constitution and article 3 of the European Convention as well as discriminatory treatment due to the applicant's disability in violation of article 45(2) of the Constitution and the article 14 of the European Convention.

The Court in First Instance had also ordered, with immediate effect the removal of plaintiff's suspension from his workplace, his return to the workplace in the same position occupied prior to his suspension as well as the restitution of such part of the plaintiff’s salary and other benefits that could have been removed due to the suspension. This judgment was appealed.

Pending appeal, plaintiff moved for the provisional enforcement of the aforestated decision, arguing that any delay in the execution of the judgment in question, would certainly cause a much greater prejudice to him than any prejudice that the defendants may suffer, given that the plaintiff, pending appeal was still suspended from his job and receiving one half of the salary due to him.

The Constitutional Court observed that the plaintiff had filed suit on February 11, 2020; his complaint related to the incident that had occurred on July 10, 2018, during working hours at the ultrasound clinic in Mater Dei hospital. The plaintiff alleged that in that incident Professor Yves Muscat Baron had insisted on the plaintiff leaving immediately from the room where the plaintiff was tending to his patients.

The plaintiff alleged that he was manhandled outside the room in the most humiliating and inhuman way and was placed on a chair outside the room. The plaintiff argued that such action was discriminatory against persons who, like him, suffered from a disability.

The plaintiff also alleged that on that very day the Chief Executive Officer of the hospital (Ivan Falzon) had threatened to fire him unless the plaintiff complied with what he was told. Furthermore, by order of the Minister of Health an inquiry was lauched into the incident following the plaintiff's request.

The court also noted that by means of a letter dated October 14, 2021, sent to the plaintiff by the Public Service Commission, he was informed that the Chief Executive Officer of Mater Dei hospital had made a recommendation for the plaintiff to be temporarily suspended on half salary "... for alleged inadequacy of care and major deficiencies in patient care which have put the patients lives at risk".

In the letter it was also stated that the Chief Executive Officer of Mater Dei hospital had suspended the plaintiff from work with effect from October 12, 2021, until the suspension on half salary was finally approved. Then in October 2021 a board of inquiry was set up to investigate the plaintiff with respect to two patients in cases that had occurred in those same months. Subsequently, by letter dated November 18, 2021, the chief executive officer of the hospital informed the plaintiff that disciplinary proceedings would be initiated against him due to "two alleged serious incidents of missed diagnosis". These incidents, however, were unrelated to the merits of the case at hand.

Zooming in on the application of Article 266 of the Code of Organization and Civil Procedure, the Constitutional Court declared itself not to be satisfied that the delay in the execution of the judgment in first instance would cause greater prejudice to the plaintiff than the execution would cause to the opposing party, when then the defendants’ appeal was still pending. The Court concluded thus after considering that:

• the appeal at hand included a plea regarding the appreciation of the evidence made by the court in first instance;
• the hearing before it was scheduled for October 2022, thereby forseeing no unreasonable delay to final judgment;
• should the appeal be rejected and the judgment of the court in first instance be confirmed, the plaintiff would still be placed in the position that he was in prior to his suspension;
• from the documentation submitted to the Court it appeared that there existed a decision that was taken in accordance with the Disciplinary Procedure of the Public Service Commission with a precautionary suspension against the plaintiff being ordered with reference to the two cases of patients who were treated in September and October 2021 and which led to the commencement of disciplinary procedures against the plaintiff.

The Constitutional Court therefore proceeded to dismiss the application of the plaintiff, with costs.

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