Updated 3pm with TM's statment
Transport Malta cannot be sued in Scotland for compensation related to a 2018 double-decker tragedy, a Scottish court has ruled.
A Court of Session in Scotland upheld the authority’s view that it was protected under the law of sovereign immunity. The law essentially allows foreign governments or foreign government departments to be immune from legal action in UK courts.
The case was filed by a Scottish man, Simon Morrison, who was seriously injured in the April 2018 tragedy that cost two other tourists their lives. Eight passengers were seriously hurt while another 13 suffered slight injuries when the tourist bus they were riding in smashed into low-lying tree branches.
The bus ride was operated by City Sightseeing Malta Limited, a family-run business. The driver is facing court action in Malta over the case, with a court discharging four company directors last March.
Morrison was seeking compensation against the bus company’s insurers, Mapfre Middlesea, as well as Transport Malta.
Transport Malta argued it was protected under the law of sovereign immunity. Morrison and Middlesea argued Transport Malta was responsible for roads on the island, so the authority should be forced to defend the action.
State immunity
The State Immunity Act of 1978 grants immunity to any foreign or commonwealth state from legal action in the UK. It defines a “state” as “a sovereign or other head of that State in his public capacity, the government of that State and any department of that government" but not any entity which is distinct from the executive organs of the government of the State and capable of suing or being sued.
The law, however, then adds that a separate entity is immune from the jurisdiction of the courts of the UK "if the proceedings relate to anything done by it in the exercise of sovereign authority."
In this case, Transport Malta, through submissions by legal professor Ian Refalo, argued that the proceedings concerned acts and omissions in the exercise of Transport Malta' functions – namely, the public upkeep of roads - which are governmental and public in character. This duty was a public function. It argued that the authority could not be involved in the action as the organisation was carrying out strategically important tasks on behalf of the Maltese government.
Morrison argued that this case was related to a failure by Transport Malta to maintain roadside vegetation and that the negligence was an issue of private law that could not be covered by immunity claims.
Court's decision
In his ruling, Lord Richardson noted that Transport Malta’s duty was to ensure the constant safety, upkeep, maintenance and security of the principal roads in Malta. This falls within an area of activity – road transport for goods and people - which is important and probably vital to the economic and social well-being of the Maltese state.
“I do not consider that the fact that the third party (TM) is an admittedly separate entity impacts upon my conclusion as to the character of the relevant alleged acts and omissions of the third party which form the basis of the current proceedings so far as the third party is concerned… In the circumstances, I sustain the third party's plea of jurisdiction based on sovereign immunity and dismiss that action."
The BBC reported that Morrison's lawyers are now hoping to recover damages from Mapfre Middlesea in the Court of Session action.
Lawyers Edward Gatt and Mark Vassallo represented Transport Malta.
TM reacts
Transport Malta said in a statement on Friday it had always insisted that the agency was not responsible for any damages linked to the incident, as confirmed by the magisterial inquiry.
The Scottish court confirmed TM's claim that it could not be sued in Scotland for compensation, it said, adding that the case will now continue against Mapfre.
Correction December 17: A previous version stated that four directors face charges in the case. A court discharged them last March.