Retrial for misapplied law must name both articles

The Court of Appeal (Superior Jurisdiction) on 5 January 2026 refused a retrial of its own judgment in Associated Supplies Limited vs M.J., a claim for breach of fiduciary obligations. Mr Justice Anthony Ellul, sitting as acting president with Mr Justice Christian Falzon Scerri and Madam Justice Josette Demicoli, rejected all five grounds raised under article 811 of the Code of Organization and Civil Procedure. The court also ordered the applicants to pay €1,000 in additional costs for a vexatious application.

The facts

The company employed M.J. from 1991 in a senior technical post that gave him confidential commercial information. It sued him in 2011, arguing that he had used that information to deal for himself with a foreign contractor on a power station project. Typeset Company Limited was later called into the suit.

On 4 October 2023 the First Hall of the Civil Court found a breach of article 1124A of the Civil Code (Chapter 16 of the Laws of Malta). It ordered M.J. and Typeset Company Limited, jointly and severally, to pay €1,697,658.25. A Court of Appeal judgment of 11 March 2025 left that order in place and added interest at 8% from the date of the first judgment.

M.J. and the company then applied for a ritrattazzjoni (retrial, an extraordinary remedy that sets aside a final judgment on grounds listed in the law). They argued that the court had applied the law wrongly, decided beyond the claims, issued contradictory orders and rested on errors of fact.

What the court held

On article 811(e), a wrong application of the law, the court held that the applicant must name the article wrongly applied and the article that should have been applied instead. Vague references to the rules on brokers and to a run of Civil Code articles did not meet that test.

The court added that a retrial under paragraph (e) lies only where one law was applied in place of another. It does not lie where the right law was interpreted in a way a party dislikes, or where the court expressly decided the point. The complaint that articles 156(1)(a) and 235 should have been applied more strictly was of that kind.

The timing of article 1124A was also an interpretation already given. The court noted that the article came into force on 1 January 2005 and that the facts relied on arose after that date. It held that a retrial cannot be used to raise pleas never made at first instance.

On paragraphs (f) and (g), the court looked only at the operative part of the attacked judgment. The claim for interest had been made although it carried no number, because article 156(1)(c) does not require numbering on pain of nullity. In the court’s words, “sakemm il-forma ma tkunx mitluba mil-liġi taħt piena ta’ nullità, is-sustanza għandha dejjem tirbaħ” (unless the law demands a form on pain of nullity, substance must always prevail).

Typeset Company Limited could be condemned although the original claims named only M.J. Article 962 allows a party called into the suit to be condemned as if the suit had been brought against it from the start. What had to be returned was the benefit gained through the breach, whatever label the payment carried.

On paragraph (i), the court held that contradictory provisions must lie in the operative part and cancel each other out. On paragraph (l), an error of fact must be a material and decisive error shown by the record, not a different reading of the evidence.

The applicants bear 90% of the costs of the retrial and the company 10%, because the company raised two preliminary pleas that failed.

Why it matters

A retrial application under article 811(e) must identify, by number, the provision wrongly applied and the one that governs. Arguments about interpretation, or about how strictly a procedural rule was applied, will fail. A weak application can also attract a costs penalty under paragraph 10 of Tariff A.

Where it sits

Retrial is the extraordinary remedy against a final judgment, available only on the grounds listed in article 811. The court read each ground narrowly and refused to let the procedure serve as a further appeal on the merits.

For the need to name both articles, the court relied on the Court of Appeal (12 January 2024), the Court of Appeal (30 November 2023) and the Court of Appeal (21 November 2023). For the rule that a wrong interpretation is not a wrong application, it cited the Court of Appeal (22 October 2024) and H.S.B.C Bank Malta plc vs Tal-Barrani Company Limited, Court of Appeal, 14 December 2022.

On new pleas it cited the Court of Appeal (28 April 2025). On contradictory provisions it cited the Court of Appeal (14 October 2014) and the Court of Appeal (25 February 2025). On decisive errors of fact it cited In-Sights Investments Limited vs Budget Services Limited, Court of Appeal, 8 July 2025.

Source

Court of Appeal (Superior Jurisdiction), 1163/2011/3, 5 January 2026: 1163/2011/3