Court decides to recognise wisdom of technical expert

Court report by Joseph Mizzi

The Court concluded that once it appoints a technical expert to a court action, although it is not bound by his or her conclusions, it will only discard them if these conclusions are proven to be unreasonable.

 Mr Justice Mark Chetcuti delivered his judgement on 17 June 2013 in the action between Ballut Block Services Limited and Canobbio Spa. The plaintiffs, Ballut Block Services Limited, claimed that the defendants, Canobbio Spa, owed them €343,369.83 for works that the former had carried out on the Hagar Qim and Imnajdra Temples. These works were carried out on the instructions of the defendant company, and although it was called upon to pay on various occasions, it did not do so. Therefore, the action was filed.

Canobbio Spa defended itself by stating that the sum claimed was exaggerated and not justified. Apart from this, the measurements listed in the invoices were inflated and also the rates applied were not part of an agreement which was reached between to the two parties on 25 January 2008. They also claimed that the plaintiff company was asking for payment for works they did not carry out and for materials which they did not supply.

The Court stated that it had examined the agreement reached between the parties on 25 January 2008. The original claim was €535,126.14, but €165,000 was paid, leaving a balance of €343,396.83. The Court listed the contestations made by the defendant company and tackled them one by one. As regards the claim that the invoice had errors, the Court appointed architect Valerio Schembri as its expert to report on the issues raised by the parties. The Court's expert concluded that the discrepancies arose from the fact that the defendant's architect did not take the measurements on site but only on the plans. It was pointed out that the design was changed from the original plans and the additional metal works were to be included and had to have a higher rate. Notwithstanding this the Court's expert made a slight amendment to one of the items.

The Court expert also examined the extra works which were carried out and the claim that certain works which were added to the invoice did not actually take place. However, this argument was labelled unfounded because the expert went on site and saw them.

The Court expert explained allegations that part of the expenses claimed were in fact works which remedied shoddy work they themselves had carried out, in particular the mobilisation and demobilisation of machinery. The Court expert explained that this mobilisation and demobilisation was essential due to the different type of work that the machinery had to perform. There was also an issue on the use of the machinery and the fact that the contracting authority, Heritage Malta, took its time to give clear instructions. Therefore the machinery was idle, and as a consequence the plaintiff company could not use it elsewhere. Therefore, they were justified to include this period of time in the invoice to the defendant company.

Another bone of contention was who supplied the holding down bolts and other bolts and whether these should have been included in the plaintiff's claim. The evidence revealed that these were in fact purchased and delivered by the plaintiffs and not the defendants.

The technical expert concluded that the invoice should have read €503,139.24 and not €535,124.14.

The Court accepted the expert's report and noted that although the Court is not bound by that report, its conclusions cannot be brushed off capriciously. If the Court is to discard its own expert's report, it must have grave reasons that put that technical opinion in doubt. The Court should never be presumptuous and ignore technical reports without a justifiable reason, because it does not have the technical skills to arrive to its own conclusions on technical matters. In this particular case the expert had to enter into detail on the technical issues raised, and his conclusions were not challenged by any of the parties.

The Court awarded the plaintiff company €312,982.28 after the technical expert had made reductions to the original claim.

 

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