The right to access the courts is a right which is sacrosanct in any democratic jurisdiction, including Malta. While a party may lose a lawsuit, the law still protects the legitimate claim to seek and institute that lawsuit.

In other words, in filing or responding to a lawsuit and then failing to have a successful outcome, one would not necessarily be breaking any laws or abusing of any rights. One would simply be exercising his or her right to seek the legal remedy he or she requires. However, the question that arises: where does one draw the line? What is justified on the one hand and what is frivolous and vexatious on the other?

The Court of Appeal was faced with this question on January 18, 2024 in the case Edward Pavia vs Dr Joseph Ellis pro et noe (to represent the heirs of Edmea Pace).

The case went back to September 19, 1987, when Pace (now deceased) signed a promise of sale and obliged herself to transfer a property in |Gzira to Pavia (the appellant) by title of exchange.

Pavia was bound, on the other hand, to transfer to Pace a property in St Paul’s Bay and pay her Lm2,000. The promise of sale was to expire in three months.

The parties did not see eye to eye and matters culminated in judicial proceedings filed by Pavia calling for Pace to appear on the final deed. Simultaneously, Pace filed proceedings to declare the promise of sale null and void.

The two proceedings were both decided in Pavia’s favour meaning that Pace was bound to sign the final deed.

Pace appealed both judgments but both of her appeals were declared to be deserted by the Court of Appeal. This drove Pace to file fresh proceedings for the declaration of nullity of the promise of sale and nullity of the judgment.

The Civil Court, First Hall, decided that the matter had already been decided and upheld the plea of res judicata. Pace appealed this judgment and following a decision on November 3, 2006, the acts were sent back to the Civil Court, First Hall for the court to evaluate evidence on the plea of res judicata.

In the meantime, Pace passed away and no one accepted her inheritance. Once again, the proceedings were declared to be deserted, this time by the Civil Court, First Hall.

Because so much time had passed from the original favourable judgments, Pavia had to institute proceedings to be able to execute his executive title, i.e. finally publish the final deed. The final deed was published on the 20th of May 2011.

In the latest court action, Pavia deemed Pace’s behaviour, particularly through the institution of several proceedings to be abusive, illegal, capricious, and reckless. As a result, he claimed to have suffered substantial damages. He therefore asked the court (at first instance) to declare this and for Pace’s heirs to compensate him for such damages.

Curators representing Pace’s unknown heirs replied by saying that they were not well aware of the facts at hand and reserved the right to present further pleas later on. The Civil Court, First Hall, did not agree with Pavia that Pace’s behaviour was abusive, illegal, capricious, and reckless and deemed it to be a mere exercise of her rights at law.

Claims for damages

Pavia appealed. He claimed that the First Court had interpreted the facts incorrectly and that, consequently, damages of €33,649.60 as well as €72,000 (to compensate for lack of use of the premises) had to be liquidated in his favour.

He argued that he was deprived of the use of the premises (the property Pace had to transfer to him) for 24 years (from 1987 to 2011).

The curators on behalf of Pace’s unknown heirs replied by pleading prescription in terms of Article 2153 of the Civil Code.

There was however an issue with the plea of prescription. The Court of Appeal pointed out that the curators had requested the court at the end of their appeal reply to confirm the first judgment in its entirety. But how could the first judgment be confirmed in its entirety if the plea of prescription changed things?

The Court of Appeal deemed this to be contraditory and thus regarded the plea of prescription to be forfeited. What the curators had to do, the court explained, was to ask for an amendment of the judgment which in turn had to be done via cross-appeal.

There then remained the issue of whether Pace’s actions were indeed reckless and abusive of the judicial system. The Court of Appeal explained that the right to seek the court’s protection was among the most important rights, in the exercise of which the citizen should not be disturbed.

It was up to the same citizen, however, not to abuse of such rights and become liable to damages. Having said this, just because a person lost a lawsuit, did not mean that he or she abused the system. It is only in exceptional circumstances that this was the case.

The Court of Appeal referred to previous judgments on the matter and explained that to prove reckless litigation (and thus have a successful claim for damages), one has to show that such person either was fully aware of the frivolous nature of his or her claim or that such awareness could be acquired with better diligence.

Applying these principles to the case at hand, the Court of Appeal concluded that Pavia was clutching at straws. The court agreed that Pace was persistent in her claim that the promise of sale be declared null and void, and one could not deny that Pavia won the case that he filed against her to execute the same promise of sale. Furthermore, one could not deny that Pace’s appeal had been declared deserted.

It was true that she kept presenting application after application in spite of the appeal being deserted. It was also true that she proceeded with filing yet another case.However, the Court of Appeal explained, this did not mean that she abused of the judicial system.

The court held that Pavia failed to prove any bad faith on Pace’s part. Furthermore Pavia could have enforced the judgment he obtained back in 1993 much before. It is to be noted that Pace’s first appeal was declared deserted on December 26, 1994 and her second appeal on February 14, 1994. The court held that there was nothing legally stopping Pavia from enforcing the favourable judgment at that point. The court acknowledged that this could be because he was trying to reach an amicable settlement with her, but still, it was his decision not to enforce at the time.

For these reasons, Pavia’s appeal was rejected and the first judgment was confirmed. This means that Pace’s actions were not found to constitute reckless litigation.

Dr Celine Cuschieri Debono is an Associate at Azzopardi, Borg and Associates Advocates.