Court does not revoke €80,000 garnishee order against Polidano

A court has refused to revoke an €80,000 garnishee order filed against construction magnate Charles Polidano by a sub-contractor who claims to have been injured whilst carrying out works on a building in Sliema.

GO sub-contractor Joseph Thomas Vella had filed the precautionary warrant against Averton Properties Limited and Charles Polidano in his personal capacity, to secure a claim for damages after Vella fell down a lift shaft that was behind an unlocked door in a property in Tower Road, Sliema, whilst carrying out works.

Polidano contested the garnishee order arguing that there was no link between him and the plaintiff and that his claim was secured by an insurance policy.

Polidano said that his “substantial assets” were known to the plaintiff and that there was “no doubt about his capacity to pay, as well as the impact this warrant is having on his business and employees” and so requested that the court penalise the injured man for filing the “malicious, frivolous and vexatious” warrant.

The court, presided by judge Lawrence Mintoff observed that what needed to be addressed was whether the insurance policy covered incidents such as those alleged by the plaintiff.

“Regarding this ‘guarantee’ no evidence as to what the policy consists of was produced by the garnisheed applicant. Not only this, whilst the applicant [Polidano] is claiming that there is a declaration by Elmo Insurance Limited to the effect that it was ready to make good for the damages, the evidence it produced to support this was an email from lawyer Alessia Zammit Mckeon which first of all begins with ‘without prejudice’...which cannot be said to be giving a guarantee – rather she is not committing herself to any eventuality. Beyond this, although the email was sent by the lawyer on behalf of Elmo Insurance Limited, it appears that the same lawyer was also writing on behalf of Averton Properties Limited and, to an extent, the applicant.”

The court said it could understand Vella’s concern at the fact that the same person who is assisting both the defendant company in a case on the merits and the insurance company when no subrogation of the defendant’s rights to the insurance company appears to have been made.

“And if it is being said that the applicant alone offers guarantees of liquidity for the amount garnisheed, how can this liquidity or absence thereof affect wages of third parties, as well as those who would have a privileged debt in any future ranking of creditors? Therefore the Court concludes that the existence of an alternative guarantee has not been proven.” 

The judge dismissed Polidano’s claim to have sufficient means to make good for any eventual award as “generic declarations” and pointed out that he had not brought evidence to support this, rather he had contradicted himself when he claimed that the warrant was put his business and his employees’ wages at risk.

The court rejected the request to issue a counter-warrant and ordered that the garnishee was to remain in place.