Court Notices published in Govt. Gazette No. 20,221 of 27 June 2019

By means of a decree given by the Court of Appeal on the 13th June, 2019, in the records of the application in the names Boris Arcidiacono Limited vs HSBC Bank Malta plc, Sworn Application Number 503/11, the following publication was ordered for the purpose of service of the person called into the cause Dr Adrian Delia, in terms of Article 187(3) et sequitur of Cap. 12.

By means of an Application, filed in the Court of Appeal in the names Boris Arcidiacono Limited vs HSBC Bank Malta plc and by decree of the 20th June, 2012, Dr Adrian Delia was called into the cause, on the 26th January, 2018, the applicant Boris Arcidiacono Limited (C 16463) respectfully pleaded:

That the interpellant summoned Audrey Ghigo, Dr Sylvana Zammit Demicoli and Anna Camilleri, employees with the defendant bank, to testify on the 26th October, 2017;

That the witness Audrey Ghigo did not bring and exhibit any document from those she was summoned to bring;

That the witness Dr Sylvana Zammit Demicoli, who confirmed by oath the sworn reply of the bank, invoked in her case the professional privilege;

That the witness Anna Camilleri went abroad without presenting any application to justify her absence;

The interpellants summoned Andrew Beane (CEO of the Bank), Nikolaos Fertakis (Chief Operations Officer of the Bank) and Dr Joseph Sammut (General Counsel of the Bank) to testify during the sitting of the 28th November, 2017;

That the bank presented an application which did not clearly indicate whether an exemption was being asked only for that day in view of the meeting of the Executive of the bank or an absolute exemption;

… omissis …

That the defendant bank abusively and in violation of the order of this Honourable Court contained in the summons of witness ‘ad exhibendum’ and despite that which the summons of witness entitles the plaintiff company to obtain as a proof is refuting to exhibite in the records the documents which he said that he has in his possession;

That the applicant company cannot bring forward proof which it can produce and this due to the systematic obstruction on the part of the bank;

… omissis …

Thus the interpellant respectfully prays that it be authorised by this Honourabe Court to appeal from the provisions given as regards the exemptions given to the witnesses Audrey Ghigo, Dr Sylvana Zammit Demicoli, Andrew Beane, Nikolaos Fertakis, and Dr Joseph Sammut as well as regards the documents indicated in the order ‘ex exhibendum’ duly signed and issued by this Honourable Court’;

That the application of the applicant company was duly notified to the defendant bank which entered a reply which reads as follows:

That this is a reply to the application filed by the plaintiff company on the 30th November, 2017, in virtue of which it is asking the permission of this Honourable Court to appeal from the decree indicated in the same application;

… omissis …

That as for the production of witnesses Andrew Beane, Nikolaos Fertakis and Dr Joseph Sammut, it appears that this Honourable Court by decree of the 27th November, 2017, had denied the request of the interpellant Bank of the 17th November, 2017, and thus the decree which had been given on the 23rd November, 2017, was surpassed by this decree;

… omissis …

That on the 3rd January, 2018, the Defence Counsel of the applicant company recieved by means of electronic mail the decree given by the Honourable First Hall and this was dated 14th December, 2017, which decree reads:

… omissis …

That the applicant company after being notified with the decree of the 14th December, 2017, was authorised to appeal from the decrees de quo in virtue of which it felt aggrieved and is filing an appeal therefrom before this Honourable Court of Appeal;

That the facts in brief are the following:

That this cause relates to a bank cheque for the sum of Eur86,210.00 issued by the Legal Office Contract Centre of HSBC Bank Malta plc, in favour of Dr Adrian Delia, without the authorisation of the applicant company;

That the dispute which led to the making of this appeal originated during the sitting of the 26th October, 2017. The applicant company summoned as witness Anna Camilleri (Group Head of Audit of the bank) to testify during that sitting, but Anna Camilleri went abroad without presenting an application and did not appear during the sitting. The interpellant also summoned Dr Sylvana Zammit Demicoli, but when she on the witness stand she made this declaration:

‘I wish to inform the Court that as a Lawyer I am not authorised to breach my duty of confidentiality’ (sitting of the 26th October, 2017);

… omissis …

That on the 2nd November, 2017, the applicant company presented an application in virtue of which it asked for the revocation ‘contrario imperio’ of the provision given during the sitting of the 26th October, 2017;

… omissis …

That in the first place when Dr Sylvana Zammit Demicoli confirmed by oath the bank’s reply, the bank to whom the professional secret belongs (and not to her) renounced the professional secret and freed her from the professional secret;

That in the second place Dr Sylvana Zammit Demicoli was produced as a witness during the sitting of the 9th January, 2014, and her evidence is another proof that the Bank had already freed her from the professional secret as a lawyer;

That in the third place Dr Eric Mamo, apart from being a Lawyer, is a bank official and in order to testify he divested himself of the professional secret;

That in the fourth place and certainly the most important point, the denial of the right of cross-examination of a witness amounts to a serious violation and an outright violation of the guarantee contemplated in Article 6 of the European Convention of Human Rights;

That in the fifth place according to the list of witnesses of the Bank signed by Dr Louis Cassar Pulliucino and by Dr Sylvana Demicoli herself, the first witness indicated is exactly ‘Dr Sylvana Zammit to testify and elaborate on the facts of the case if necessary’;

… omissis …

The object of the proof and its relevance

That there being established these four legal points which justify the request that Dr Sylvana Zammit Demicoli be produced as a witness, the interpellant shall now deal with the object of the proof.

1. In paragraph 4 of the sworn Reply of the respondent bank it is declared by Dr Sylvana Zammit Demicoli: ‘As the bank had no indication that there was any contestation or reservation as regards the bill presented by the Advocate of trust of the same plaintifff company, Dr Adrian Delia, the bank proceeded to issue a bank cheque in order to pay the legal and professional fees of Advocate Dr Adrian Delia in the sum of €86,210.00. The applicant company has the right amongst its proof to force the bank to present the bill which was presented by the advocat of trust’.

2. In paragraph 5 of the Sworn Reply of the respondent bank there is declared by Dr Sylvana Zammit Demicoli, ‘It shall result from the evidence that Dr Adrian Delia was asked not to be paid all the amount agreed as a success fee on the contract for this purpose. The applicant company has the right that amongst its proofs it compels the bank to present the ‘success fee agreement’ mentioned by the witness Dr Zammit Demicoli.

… omissis …

  9. There are various questions which this witness is to reply, amongst which: Once she did not work in the Contract Centre and did not know the facts declarded by her in her sworn reply ‘di scientia propria’, as instead the person involved Dr Zammt Demicoli knew, from whom did she get the information declared by her under oath?

… omissis …

  14. The defendant bank tried to hide behind the privilege enjoyed by the client in his communications with the lawyer. But in the present case the client himself, namely the bank, had given instructions to Dr Sylvana Zammit Demicoli to represent it as agent of the bank by presenting the sworn reply of the bank duly sworn by her. This means that the bank had freed her from the professional secret from the moment when she swore the said reply.

Thus, for all the reasons above explained the interpellant company respectfully prays that this Honourable Court orders the revocation ‘contrario imperio’ of the provision given ‘seduta stante’ and accept the evidence of Dr Sylvana Zammit Demicoli, who is the first witness indicated in the list of witnesses of the bank and a central witness in this case.

… omissis …

  Decree of the 26th October, 2017

That the applicant company requires a reasoned decision why it should not have a right to produce as witness Dr Sylvana Zammit Demicoli and this for the following reasons:

… omissis …

  Decrees of the 23rd November, 2017, and the 27th November, 2017

The decree of the 23rd November, 2017 (fol. 812) refers to the application of the bank of the 17th November, 2017 … omissis … and by decree of the 27th November, 2017 , the Court saw once again the application of the 17th November, 2017, and after considering the reply of the applicant company of the 27th November, 2017, rejected the request ‘in view of the same reply’. Thus, there is no room that the interpellant appeals from the decrees of the 23rd November, 2017, and the 27th November, 2017. The interpellant company declares that until the documents listed in the summons of the witness sent to Audrey Ghigo and the CEO of the bank, Andrew Beane, are produced, it shall have to continue to insist that the bank present the documents listed in the summons ‘ad exhibendum’.

Thus the interpellant, whilst filing an appeal from the decision given on the 26th October, 2017, in virtue of which the Honourable First Hall Civil Court 1) exempted the witness Dr Sylvana Zammit Demicoli from testifying due to the obligation of confidentiality and 2) rejected the request of the plaintiff company so that in default that the same witness accepts to submit herself to the examination or cross-examination regarding the declarations contained in the sworn reply of the defendant bank sworn by her, it is removed.

… omissis …

1. Revoke and cancel the provisions above indicated from which the interpellant is filing this appeal and pass on to uphold the demands of the applicant company to bring forward in order that it be examined or cross-examined the witness Dr Sylvana Zammit Demicoli and order that the witness mentioned be bound to reply the questions made to her which relate to the case and especially as regards the declaration made by her under oath in the sworn reply of the bank, and

2. Uphold the request of the applicant company and order that in default of a Sworn Reply by Dr SylvanaZammit Demicoli it be deleted and

3. Uphold the demand of the plaiuntiff company and order that the defendant company exhibit the documents which are found listed in the summons of witnesses sent to Audrey Ghigo (fol. 700) and Andrew Beane, CEO of the Bank (fol. 779 and 784) as well as any other document related with the bank cheque issued by Dr Adrian Delia without the authorisation of the plaintiff company since they failed to present the documents indicated to them.

Whereas the written procedures in the cause before the Court of Appeal in the cause between Boris Arcidiacono Limited vs HSBC Bank Malta plc have been closed, the Court fixed the hearing of the cause on Monday twenty-second (22) of October, 2018, at 9.00 a.m. and deferred to the 1st July, 2019, at 9.30 a.m.

Notify: Party called into the cause: Dr Adrian Delia, Dar Ċentrali, Partit Nazzjonalista, Tal-Pietà.

ADV. FRANK PORTELLI, LLD

For the Registrar, Civil Courts and Tribunals

By judgement given by the Civil Court, First Hall on the 30th May, 2019, on the application number 187/2018 LSO in the names Tadhg Muiris known as Maurice O’Scanaill et vs Dr Martin Fenech et noe, Tuesday, 30th July, 2019, at  eleven in the morning (11.00 a.m.), has been fixed for the sale by auction to be held in room number 78, near the Courts Archives, Level -1, Courts of Justice, Triq ir-Repubblika, Valletta of the following property.

Tenements numbered one hundred and eighty (180) and one hundred and eighty-two (182) previously numbered seventeen (17) and eighteen (18) in Triq Bormla, Paola, with its own airspace, free and unencumbered, with all its rights and enjoyments as per the valuation by the architect and civil engineer Mario Cassar, with offers starting from one hundred and fifty thousand euro (€150,000).

The said tenement is the property of Muiris Tadhg known as Maurice O’Scanaill (ID 39113L), Xuereb Alexandra (ID 450465M), unknown and uncertain successors in title of the deceased Maria Glasson, the absent children Chelsea Brennan and Danielle Marjamaa of the deceased Joseph Brennan (Jnr), and the absent Helen Elizabeth, Winifred and Leonide siblings Brennan, children of the deceased Joseph Brennan Snr, and by decree dated 22nd March, 2018, Dr Martin Fenech and LP Gerald Bonello had been nominated as deputy curators for the absent.

N.B. The said tenement will be sold as described in the acts of judicial sales number 27/2019.

GAETANA AQUILINA

For the Registrar, Civil Courts and Tribunals