Mr Justice Giovanni Grixti did not follow proper legal procedure when he delivered a decree in chambers, deciding to abstain from hearing the case filed by the Opposition concerning the privatisation of the three public hospitals, State Advocate  Chris Soler has claimed.

This claim was the subject of an application filed in the wake of a decree delivered by Mr Justice Grixti on Monday in the case where the Opposition is calling on the State Advocate to recover funds defrauded out of public coffers in the controversial Vitals/Steward Healthcare deal.

On Monday the judge was expected to deliver his decision on a request by the government and cabinet to intervene in the case.

But shortly before the scheduled hearing, Mr Justice Grixti delivered a decree in chambers which was communicated directly to the parties, stating that following the previous hearing on January 15, a situation had developed which “impeded” him from continuing to hear the case.

The judge explained that his partner, lawyer Yanika Bugeja, had been appointed to act as curator representing Steward Assets Management Malta on the deed of rescission of ground rent of the lands concerning the public hospitals.

The judge explained that he had learned of his partner’s involvement on January 18 and the deed was signed on January 19.

Since Steward were among those named by the Opposition in their original application as persons to be sued for damages, the judge declared that his partner’s involvement meant that he “did not feel at all serene” in continuing to hear the case.

However, the State Advocate is now questioning the line of action taken by the judge and is asking for appropriate measures to be taken, if necessary even by revoking that recusal decree.

The State Advocate argued that article 733 of the Code of Organization and Civil Procedure lays down specific grounds for abstaining or recusal.

The procedure to be followed is clearly spelt out in article 735.

According to that provision, the judge must first issue a declaration either in open court or in writing, to be put down in the case register and brought to the notice of the parties before the date set for hearing.

If the parties consent to him continuing to preside over the case, the judge may do so.

However, he may nonetheless decide to abstain even if the parties voice their express trust in him.

In this case, Mr Justice Grixti “skipped” all that procedure, delivering instead a decree in chambers on the same day that the case was scheduled for hearing.

“A court decree is only legitimate if procedurally correct,” argued the State Advocate, pointing out that the relative legal procedure was also meant to safeguard the rights and interests of the parties.

He said that in his decree, Mr Justice Grixti appeared to indicate that he could do away with that procedure when saying that even if the parties “freely declared their greatest trust in the presiding judge as they implicitly said during the January 8 sitting, the Court did not feel at all serene” in continuing to hear the case.

The circumstance concerning his partner came about after that January 8 sitting and therefore was a totally “new and distinct” reason to that flagged by the Opposition that day.

At the first hearing, the Opposition’s lawyer Edward DeBono had flagged the judge’s familial ties to a medical professional who had been involved in the due diligence assessment of the hospitals’ concessionaire.

That day, neither of the parties had any issue about the judge continuing to preside over the case.

The state advocate said that rather than deliver a decree in chambers without specifying any of the circumstances listed in the law, the judge should have abided by the proper legal procedure and observe the parties’ rights. He thus called upon the court to take appropriate measures, including revocation of Monday’s decree if necessary.

State Advocate Chris Soler signed the application together with lawyers James D’Agostino and Julian Farrugia.