PN MP and former Opposition Leader Adrian Delia believes that ‘only a clean Prime Minister, a clean government' would be suited to recoup the money from the hospitals deal.

In February, the Civil Court annulled a deal which gave a private operator control over three of Malta's hospitals. The three hospitals, - St Luke’s hospital, Gozo General hospital and Karin Grech hospital - were originally handed over to Vitals Global Healthcare (VGH) to operate in a deal struck in 2015. The deal with VGH, a relatively unknown consortium at the time, had raised many eyebrows. In 2018, the concession was passed on to Steward Health Care.

Delia had filed a case to give the hospitals back to the people in 2018 when he was Opposition Leader, with the court ruling in his favour last February. The appeal filed by Steward Health Care was dismissed by the Court in October, although an amendment to the February judgement was made for the costs of the case to be shared by the Government and Steward Health Care, and not borne by Steward Health Care alone.

The original court judgement had mentioned fraud, while the judges on the Court of Appeal decision mentioned collusion. 

The Court of Appeal concluded that the granting of the concession was not the result of deceit perpetrated by one of the parties but of collusion between both parties in the deal. The Appellate court found this to be the case not only at the time when the appellant companies had been selected as the preferred bidders “after having been given access to privileged information”, and when the concession was granted and was known to be unachievable, but also when the agreement was to be carried out and, while nothing had been done, those who were duty bound to protect the nation’s interest, instead of doing so, “gave extension after extension to prevent it becoming public that the agreement was only a facade instead of the real deal and continued to pay millions of euros to the appellant companies although these were not fulfilling their contractual obligations,” the court said.

"Responsibility was confirmed, insofar as all the defendants were concerned," Delia said in an interview with The Malta Independent on Sunday, referring to the foreign companies cited in the case and also “the five entities which represented government, which means the Prime Minister, the Attorney General, the CEO of Malta Industrial Parks (today INDIS), the CEO of the Lands Authority, and the Chairman of the Board of Governors of the Lands Authority."

"What changed drastically, at least in so far as the political consequence is concerned, is that where the first court found that it was the foreign companies which had committed fraud with respect to government, the Court of Appeal is saying that there was collusion," Delia said.

He said he had described the first judgement as 'historic', but "this is unprecedented, because it is the Court of Appeal finding the government in collusion on defrauding its own citizens and country."

Legally there is a case for reclaiming the money, Delia holds. The Court of Appeal judgement says that this was a fraud, Delia adds. “Therefore, legally a case must and should be made,” he said. 

Asked whether the latest judgment which found collusion will affect the government's ability to get the money back, Delia thinks it will from a political standpoint, but stressed that from a legal standpoint the case to get the money back stands.

"This is an unprecedented situation. The government, and therefore the Prime Minister as the head of government, can sue to get back the money,” he said. 

But, given the Court of Appeal judment, “it would have made sense for the Attorney General and the Prime Minister to resign and then for newly installed public officials to actually take the action."

In a normal country, he said it should not be the same government and Attorney General who were parties in the case which found collusion between the companies and the highest exponents of government or its agencies, “to sue to get back the money back from the fraud.”
Delia believes the government should resign en masse. "The first defendant is the Prime Minister - who was Joseph Muscat, and later Robert Abela. It is clear that the Prime Minister was cited in the case as the head of government. When you sue government, you don't sue every single member, as the operation of government vests in the Prime Minister. Therefore a judgment against him is a judgment against the government." 

He also said that the Attorney General is cited in the case.

This situation, he said, gives rise to Constitutional issues. 
He said that if the Attorney General and government were respondents in a case which found collusion, then it creates a particular situation. "If you are an accomplice, it’s the accomplice who is suing..." So would it be "the Attorney General invoking herself to take steps? This has never happened before."

He also made reference to motions that the Opposition had filed over the years regarding the hospitals deal, which he said roped in all members of Parliament. “We had said at the time: ‘this is a fraudulent deal’, how are we going to commit a further €70 or €80 million in our budget. They were formally notified."

As for who is best positioned to get the funds back, Delia says that "only a clean Prime Minister, a clean government are suited to do so". 

Delia stressed that the money must be brought back.

Steward Health Care’s statement

Steward Health Care had said, in a statement following the recent court decision: “We are pleased that the judgment has dismissed the fabricated claims of fraud to which SHCM (Steward Health Care Malta) has been subjected. The Court found that there was collusion involving VGH (or its then shareholders) and representatives of the Government and its officials, prior to Steward entering Malta."

Asked whether he sees the judgment as the court dismissing the allegation of fraud on Steward's part, he said that the company is not right in its statement.

"What they should be referring to are the shareholders of Steward, not Steward per se." 

The court also says that Vitals Global Healthcare Assets Limited, Vitals Global Healthcare Limited, and Vitals Global Healthcare Management Limited "remained the same companies," he said. 
He said that the companies were renamed. In the court case "it doesn't list them as being, for example, Vitals Global Healthcare Assets which then assigned its rights to another party, but rather says 'today Steward Malta Assets Limited'. It was renamed, but the company, therefore the juridical person, remained one and the same."

"So if Vitals had committed anything, whether it was a breach of contract, whether it was a non-performance of obligations, whether it was fraud, that same company was renamed to Steward. What they are referring to is that it was not the shareholders within Steward Health Care.”

"But it is not correct to say that Steward have not been found responsible."

The case, he said, was against the companies themselves, which "were all found responsible."

Delia later also said that the CEO of the company as originally composed by its shareholders, then became the President of the renamed same company. “So insofar as the operation of the company, it totally remained the same, because the CEO of the company in the beginning then became the president of the company when it saw a change in its own shareholding.”

Delia quoted from the appeals judgment. "Another wrong argument is that 'the performance of the contract by Steward is absolutely irrelevant for the case ragione temporis as the case opened in February 2018, a few days after the contracts were assigned to Steward'. We've already seen that no contract was assigned to Steward as the appellant companies remained the same, both when they were named Vitals and also when they changed their name (but not their identity) and became Steward."

Police investigation

He was asked about the PN's call for the police to investigate separately, even though there is an ongoing magisterial inquiry. "Our law lays down that these two investigations can, and have very often, moved in parallel. If someone reports a theft today, or that they have been defrauded, usually they don’t wait for the magisterial inquiry, because if the police have enough grounds, suspicion, evidence to act, they simply move forward with the investigation, arrests and go to court. So one does not conflict with the other at all."

When there are crimes of a far lesser value, the police take action and take people to court, he said. 

He said it gives no comfort to citizens that even when there is a Court of Appeal judgment saying that there is a criminal act (ghemil doluz), "even then the Police commissioner doesn't act immediately... I would have expected the Commissioner to be there in court and, as soon as this judgement is pronounced, move forward with the investigations, with arrests."

Regarding former Prime Minister Joseph Muscat, Delia said he doesn't have stronger words for him than the words of the judgment itself, but Delia would be interested in hearing what he has to say. "First he defended these deals in court," Delia said. "Secondly, when there was the first judgment, the only leg both Muscat and Robert Abela had to stand on was to say that the fraud was not by the government, and that the government was the victim. That's how they tried to portray things. I want to hear them now. We heard Robert Abela in Parliament, he had no defence to make. I would like to see them together all explaining how they can justify a payment from the public purse of €400 million and, quoting the words of the court, getting nothing in return."

The PN has been arguing that it wants the government to recover €400 million, but the government has made the argument that there were payments made for the running of the hospitals etc. Asked about this, Delia said: "For a number of years the government was saying that the €400 million included the wages. The three Auditor General’s reports are part of the judgment. A section of one of those reports says 'over the period 2016-2021 the government paid the concessionaire €267 million,' and then said "salaries of [human] resources made available to the concessionaire by the government during this period accounted for a further disbursement of €188 million.' If you get that €267 million and add the two budgets following that, around €70 and €80 million, that's the €400 million plus," he said. Delia added that the Auditor General is saying that the €188 million was over and above.

"Government defended this for five years in court. Why did it bring this as its defence? Why didn't they show, as they made the payments, where the €400 million went and for what they actually paid? Did they pay for a hospital to be built in Gozo? No, as it wasn't built. Did they pay for the refurbishment of St Luke's, no because it wasn't. Did they pay for the refurbishment of Karin Grech Hospital? They haven't. At the time they were saying that it was for salaries, we know it isn't."

He said that Steward Health Care, in court, presented a report which showed the "unbelievable lack of works" carried out.

Delia noted that the figure stopped at €400 million because he had filed the case, saying that the deal was for much, much more.

During the interview, he described the situation as institutionalised fraud. "I used to say this is worse than corruption (...) here we have the highest government exponents in complicity of fraud over a number of years."

Court action

On Wednesday, Opposition Leader Bernard Grech together with Delia filed a judicial protest in court giving the Police commissioner, Attorney General and State Advocate one week to take action following the decision by the Court of Appeal over the hospitals deal. The judicial protest lists all the people and companies who the PN indicated should answer for their part in the hospitals deal.

Delia told this newsroom that through the judicial protest, they passed on the names they had mentioned in the complaint which they had filed with the Police commissioner. "Before it was simply at a criminal level, whereas now it is also insofar as any other action that can be taken at law. We are also holding them personally responsible if they do nothing," he said, with reference to the Police Commissioner, Attorney General and State Advocate.

He said that there are institutions that should be working. "If those institutions aren't working, then there is a renunciation of the office."

"We are reserving the right to take any other legal action after that if they desist. My hope is that they will proceed."

Asked whether this means he and Grech are considering taking legal action specifically against the Police Commissioner, Attorney General, State Advocate if they don't act upon what was written in the judicial protest, or if they are referring to Parliamentary action, Delia said that the Opposition is "excluding nothing at this stage. This is totally unprecedented, so every step that is being taken is being carefully considered. We are also taking legal advice as this is something at institutional level, the abdication of duties. We are being very careful here and are trying to ensure as best we can, as the Opposition, that those who at law have the power to act, do so. They don't only have the power to act, but the duty to act."