When one plea may cancel another

A plea claiming that an action is time barred, may be cancelled if one pleads that the claim itself is overstated

This was held in a judgement delivered by Ms Justice Anna Felice on 10 October, 2017 in Arnold Joseph Grech and Doris Grech -v- Jimfard Company Limited, Muscat and Gatt Construction Limited and GAM Limited.

In their application the Grechs asked the court to find the defendant company responsible for damages after they carried out construction works next door to them. They also asked the court to order the companies to pay for the damages. In their application they explained that they reside in Attard and the house next door was demolished and a new building was constructed. At first they filed a warrant of prohibitory injunction, but following discussions and an agreement, the warranty was dropped. Jimfard Company Limited and Muscat and Gatt Construction Limited accepted responsibility, but learned that GAM was the owner. However, the plaintiffs felt that the defendants did not honour the agreement when the construction was underway, since their residence suffered damages.

The defendant companies replied by saying that GAM had no judicial relationship with the Grechs and that the action was time barred. They argued that the claim put to them was inflated and therefore, exaggerated. 

From the evidence produced it transpired that the parties tried to reach an agreement on which works had to take place, but never managed to identify the damages attributed to the construction work and the amount due. On 29 July, 2009, the plaintiff’s architect indicated that the remedial works amounted to €31,327.56, which the defendants’ architect estimated to tot up to €25,321.45. The insurance company offered another sum, which was considered as a pittance. On 10 November, 2010, the defendants’ offer was of a payment of €11,876, and that they would be doing the works themselves in the well or else they would be doing all the works themselves under the supervision of the plaintiffs’ architect. The plaintiffs argued that it was the companies which were being difficult, since they never wanted to start the works.

Ms Justice Felice then dealt with the pleas raised, the first of which was that GAM had no judicial relationship. The Court turned down the plea on the ground that the action was one of damages and not breach of contract. Although the agreement was entered into by the two other defendant companies, GAM had purchased the property.

The companies argued further that the action was time barred in according with Article 2153 of the Civil Code, since two years had elapsed. However, this plea was incompatible which another plea listed in the statement of defence, that the sum requested was exaggerated.

In a previous judgement, Lorry sive Lawrence Cuschieri -v- Minister of the Environment, of 25 February, 2005, the Court had said that if the defendant is saying that not all the claim is due, this would be incompatible with a plea that the action is time barred. This was echoed in Guido J Vella A&CE -v- Dr Emmanuel Cefai of 5 October, 2001. Ms Justice Felice had pointed out that the companies always accepted that they had caused some damage. Therefore, this plea was also turned down.

The Court turned its attention to the merits of the case. It criticised the stance taken by the defendant companies that the agreement of 16 March, 2007 allowed them to carry out the works and they were barred from filing an action for the liquidation of damages. The Court pointed out that the agreement did not exclude them from seeking damages. There was no renunciation to a damages claim. 

From the evidence produced it was clear that the companies did not agree with the total list of damages sustained. With regard to whether the damages included the well, the Court pointed out that the companies already had offered to fix it. The only contestation that existed before the lawsuit was instituted, was the quantum of the damages. But the same companies pinned certain damages to another adjacent development. Although it was true that this other development took place, the companies failed to prove that this was the cause of the damages.

On the amount due for the damages, the Court made reference to the court appointed expert’s report, which concluded that €22,885.71 was to be paid. The expert warned that while the works were being carried out the Grechs could not live in the premises and this added to the expense. 

The Court held that Article 681 of the Code of Organisation and Civil Procedure stipulates that the Courts are not bound by the experts’ reports, but in Philip Grima v Carmelo Mamo et noe decided on 29 May, 1998, the Court should not set aside the expert’s report at a whim – there must be serious reasons. 

The Court then moved to uphold the claims limited to €22,885.71 and ordered the companies to pay this sum to the plaintiffs.

 

Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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