A common question soon after reading the blog was: Did you win?
So, this is my attempt to answer that question.
(Anyone bored out of their mind by all this, please do not read on. I totally understand that you may have had it up to here with all of my ramblings.)
Unfortunately, I believe that the answer to this question cannot be a Yes or a No answer.
The answer is more complicated than that.
Most people would look at the entire situation we were in and immediately say that the situation was unjust and unfair. They would be outraged on our behalf and demand a 100% victory for us.
In fact, my lawyer said that we were 100% morally in the right. So the corollary to that would be that we should get a 100% victory.
However, let us examine the situation more closely.
- There is a loophole in the utility billing system of the sole, state owned utility billing company in Malta. This loophole is that all tenants living in Malta cannot access the more favourable residential utility tariff WITHOUT the permission of the landlord.
- The court judgement states that I did not prove that my ex landlord lied to us when he told us that increasing the number of registered residents from zero to 5 on the bill would not make a difference. As most of you know, Arms is a shambles. However, the court of law had to believe the Arms representative when he corroborated my ex landlord’s statement that he hadn’t known about the two tier tariff either. But then again, just because it wasn’t proven, doesn’t mean that what I suspect is untrue. Is the law to blame here? In my opinion, no. Judgements have to be made on facts and evidence, not suspicions.
- When we found out that we were on the incorrect tariff, we refused to continue overpaying because we had already overpaid by about 1 400 euro. Isn’t this what most consumers do when they realize that they are being overcharged?
- Our ex landlord, as was his legal right, took out a precautionary garnishee order on our bank account and on my salary. He was able to do this because prima facie (on the face of it), he could show a court of law that we owed him money. Our rental contract stipulated that we had to pay him 100 euro on account towards our utility bill every month. It did not stipulate what tariff the landlord should have put us on. We never knew about the two tier residential tariff, so we could not have put a clause in the contract specifying that we should have been on the correct tariff. Having been in the country for only 10 days before we signed the contract, we assumed that there was only one tariff. Is the law to blame here? No, we signed the contract.
- I understand the need for precautionary garnishee orders. I am sure that there are many people who spirit money away from genuine creditors. So, I do see the need for these kinds of orders. However, was our ex landlord morally right to exercise his right to a garnishee order in this instance? In my opinion, absolutely not. Is the law to blame here? No. I put the blame fairly and squarely on my ex landlord’s shoulders. In this situation, my opinion is that the garnishee order was a strong arm, bullying tactic, designed to make us pay up and shut up.
- A precautionary garnishee order does not depend on the merits of the case. All the creditor needs to do is show the court of law that there is a debt. It doesn’t matter if the debt is disputed. Is the law to blame here? Well, I am ambivalent about this one. Because if it does not depend on the merits of the case, then there is more scope for an unjust application of this kind of order. Having said that, precautionary garnishee orders have to be applied very quickly and without the knowledge of the ‘debtor’. So this is a difficult one.
- Before we moved to Malta, Eric and I had never heard of a garnishee order. Neither had we known anyone who had had a garnishee order. (In fact Eric cracked jokes about garnishes and salads for quite a time to try and cheer me up!) Whereas in Malta, it seems to be very common. You read about it in the papers all the time; I personally know a few people who have had one. I wonder whether it is overused in Malta, whether it has become known as a powerful, bullying tactic by ruthless, greedy people.
- Coupled with this is most Maltese people’s perception of Maltese courts. Many people say that you should only go to court when you are in the wrong because that’s when you will win. It’s a very powerful feeling that most Maltese people seem to have. I think that this is a great shame. It has become a self fulfilling prophecy. We have to challenge any wrong doing even if it means having to go to court. Otherwise, we will have more and more ruthless people acting with impunity because they think that they can get away with it.
One very important point I would like to make. My ex landlord took ME to court. M’hiniex xi gellieda. (I’m not a person who picks fights) In fact, we had resigned ourselves to not seeing our overpayment back; we put it down to a lesson learnt. (That’s all changed now and we are determined to get all our money back from Arms, including legal and court costs.) I had to be very careful throughout the two years to fight THIS particular legal battle, and not get side tracked down blind alleys. I was not fighting Arms in court; I was defending myself against my landlord.
And that brings me to the most important point of all.
On the 28th January, 2014 I wrote this in an email to ex Arms CEO James Davis, Minister for Energy and Health, Konrad Mizzi and cc’d to Prime Minister Joseph Muscat:
“I would respectfully suggest that ARMS accepts that we have been resident in Malta since the 24th September, 2010. I can corroborate this with a considerable paper trail. This would mean that ARMS would refund our over payment of 1 600 euro. And the arrears of about 1 400 euro will be cancelled. This will mean that **********, my ex landlord, will have his case dropped and we can have the amount of our garnishee (about 2 000 euro collected over the last 5 months) returned to us.”
Of course, the answer was no.
In my opinion, this matter should never have got to court. Why on earth should tenants pay more for their utilities than homeowners? Are tenants lesser beings? How on earth can courts of law fill the huge black holes of incoherent administrative policy? This was never a matter of law. Tenants cannot be discriminated against by a government just because they are tenants.
This journey of ours has been traumatic. It has also been extremely interesting to be immersed in this particular example of catastrophic, shambolic Maltese administrative policy. The Maltese government has been stealing from tenants with impunity since this billing scheme was introduced in 2009. Shockingly, the Maltese government has proved to be intransigent; it has not done anything about putting this right. I also blame the previous administration who introduced such an unwieldy, unworkable billing system.
Interestingly, also, you get a fair section of the Maltese people who think that there is nothing wrong with tenants paying more for their utilities simply because they are tenants. It is very unnerving to hear very well educated people defend this insanity.
So, in answer to the question ‘Did you win?’, I feel that we have. Absolutely we have.
The law had to be applied. There is no law which states that the landlord should have put us on the more favourable tariff. The law is a blunt instrument; there cannot possibly be an infinite number of laws that address every single conceivable injustice.
However, the court ruled that the landlord should have done some research himself, especially seeing as he is a landlord of other properties. Therefore, the cost of the overcharge is to be shared equally between us.
So, yes, I feel that WE HAVE WON this particular battle.
And we will also win the next battles. We will make sure that Arms takes away the need for the permission of the landlord. We will make sure that tenants are refunded their overpayments.
The war is still to be won, battle by battle.