Lowell vs. Caruana and governmental liability in Malta

Abstract

The judgement of the Civil Court Ost Hall) in Lowell vs. Caruana, delivered on 14th August, 1972, 3 per the Hon. Mr. Justice Caruana Curran, has cleared the ground for an appreciation of judicial trends in the application, culminating in rejection, of the notion of ius imperii where governmental liability is at issue. The judgement, basing itself upon a logic which repays careful examination for the kind of judicial approach which it articulates, insists that the doctrine of sovereign immunity for the Administration when it acts iure imperii cannot be considered as forming any longer a part of Maltese Law. The doctrine, at least in its more sweeping applications, has been stultifying the better part of governmental liability, namely that of keeping the Administration within the law, wherever and howsoever necessary. Partly as an effect and partly as a cause thereof, judicial control of administrative action in Malta has been inhibited from growing into a body of public law with direct usefulness for the law of governmental liability. It is my intention in the present article to discuss these and other kindred implications as they arise from this judgement.