Maltese road authority held immune from Scottish action
The Scottish courts have no jurisdiction, in an action arising from a road accident in Malta, over the authority responsible for maintaining the roads there, as it was exercising sovereign authority delegated by the Maltese state, the Inner House of the Court of Session has ruled.
Lord President Carloway, Lord Malcolm and Lord Pentland gave the decision in refusing a reclaiming motion by defenders who attempted to bring the authority into the action as third parties, against a decision of the Lord Ordinary, Lord Richardson, that the authority was entitled to immunity in terms of s 14(2) of the State Immunity Act 1978.
The action was brought by Simon Morrison, who was seriously injured as a passenger on a tour bus in Malta in 2018 when it hit the branch of a tree, against the bus operators, City Sightseeing Malta Ltd, and its insurers Mapfre Middlesea Insurance plc. The insurers sought to bring in the Maltese transport authority as third parties. After a preliminary proof the Lord Ordinary sustained the plea of no jurisdiction and dismissed the action against the third parties.
Before the Inner House the insurers argued that the Lord Ordinary erred in not recognising that the third parties’ failure to ensure that the trees did not present a danger to road users was not a governmental act. He failed to carry out a proper analysis of whether the act was a private act of a private law character or a sovereign or public act of a governmental character. He ought to have taken into account the third parties’ status as a separate entity which was capable of suing and being sued. Not every act of a separate entity, which was carrying out government policy, attracted immunity.
Delivering the opinion of the court, Lord Carloway said the rationale for the principle of state immunity from suit in a foreign jurisdiction was that the courts in one state ought not to adjudicate on the acts of another state. A distinction was recognised between acts involving commercial or private rights, in respect of which there was no immunity, and acts arising from the exercise of sovereign power.
The court had to consider the whole context in which the claim was made. In the present case "The omission, when looked at in context, was not one which was concerned with trading or commercial activities but with a public duty to maintain the safety of distributor roads throughout Malta. That is a governmental act... It was not one which could be performed by a private citizen."
The fact that the third parties contracted with private entities to carry out the maintenance work was not relevant to an analysis of the third parties’ duties, as delegated to them by the state. What was relevant was that the third parties viewed themselves as carrying out the Maltese state’s obligation to maintain major public roads.