The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia in the case “SBT Ltd vs Francis and Rita Cassar” on November 25, 2011 held, among other things, a person to be liable for damages suffered by his neighbour as a direct result of his refusal to permit necessary repairs to the dividing wall from his property.

In the circumstances, the court concluded that the lack of cooperation by Francis Cassar was unjustifiable in particular over such a considerable length of time.

Mr and Mrs Cassar claimed that it was unlikely that their refusal to permit the repairs from their property was the only cause which made the company cease its business operations

The facts in this case were as follows:

The company SBT Ltd owned stores, a showroom and shops adjacent to Francis and Rita Cassar’s home in Arcade Street, Paola.

In 1993, it requested the Cassars’ permission to carry out maintenance works, consisting of patching and plastering of the dividing wall, overlooking the Cassars’ airspace.

As the company’s building exceeded the height of the Cassars’ property, there was a large part of the dividing wall which was exposed to the elements and needed attention. Mr Cassar refused, however, to consent, and as a result, the company suffered damage to its property.

It was stated that it was compelled to shut down its premises for a time and cease all trading activities.

Faced with this situation, the company, SBT Ltd proceeded by filing legal proceedings against Mr and Mrs Cassar. They requested the court:

1. To order them to give them access to carry out repairs,

2. If they failed to comply, to hold them liable for contempt;

3. To declare them to be liable for damages to their property and for loss of income.

In reply, Mr and Mrs Cassar claimed they would consent to the repairs subject to the condition that:

a. No damage would be done to their property;

b. That the workmen would clean up before departing; and

c. That they would be paid Lm15 daily, to compensate for the time they would have to spend at home to supervise the company’s workmen.

Mr and Mrs Cassar claimed that it was unlikely that their refusal to permit the repairs from their property was the only cause which made the company cease its business operations. Other reasons were given such as lack of permits.

They maintained that the part of the dividing wall requiring maintenance from their property represented a very small percentage of the company’s establishment; and that probably, the damage suffered by the company was caused by the poor workmanship of the company’s builders.

It resulted that during the proceedings, and only after many years, Mr and Mrs Cassar finally conceded to the works, from their property. The repairs were completed in 2004.

As the company in the meantime had still suffered damages, the court had now to decide whether Mr and Mrs Cassar should be held liable for damages, owing to the considerable delay in permitting the repairs.

On January 26, 2009, the First Hall of the Civil Court decided that Mr and Mrs Cassar were in fact, responsible for the damages.

The court said there was no justification for them to deny their consent and to prevent the company from carrying out necessary repairs for such a long time.

The court considered the considerable length of time taken by Mr and Mrs Cassar to permit the repairs which was not reasonable in the circumstances.

Though they had every right to oppose certain type of activities to be carried out by the company, the court was of the opinion that Mr and Mrs Cassar should not have withheld their consent for such a long period of time.

The court also noted that Mr and Mrs Cassar’s lack of cooperation could not have been the sole factor which precluded the company from operating from its premises. As it could not be excluded that water might have seeped in from other areas, the court felt that this should be taken into consideration in the context of determining the amount of damages payable to the company.

There was no doubt that the company obtained all necessary permits. It was evident that Mr and Mrs Cassar did their utmost to hinder the company from commencing its operations next door.

The court said that by 1993, the company was free to use its property and to carry out repair works. Contrary to what Mr and Mrs Cassar stated to their defence, a significant area needed plastering: this measured up to 85 feet and in some parts up to the height of three floors.

In addition, the court maintained that Mr and Mrs Cassar had not proven the allegation of poor workmanship by the company’s builders.

Aggrieved by the decision of the Court of First Instance, Mr and Mrs Cassar entered an appeal calling for its modification.

Their grievances related mainly to:

1. The declaration by the First Court that their refusal was not justified;

2. The court declaration that they were responsible for damages; and

3. That they had to share in the judicial costs.

The company contested Mr and Mrs Cassar’s appeal.

They also filed an incidental appeal, requesting the court to free them from any liability to contribute to the judicial expenses.

On November 25, 2011, the Court of Appeal gave judgement by dismissing both appeals and by confirming the decision of the First Hall of the Civil Court.

The following reasons were given for its decision:

On September 29, 1993, the company accepted Mr and Mrs Cassar’s conditions but needed a date when to commence the works. Eventually, they permitted the works were approximately 11 years later.

Even if the conditions imposed by Mr and Mrs Cassar were reasonable, there was no justification for Mr and Mrs Cassar to refuse the execution of the maintenance works, for such a long period, after the company accepted its conditions.

For these reasons, the court declared Mr and Mrs Cassar were not only responsible to contribute to the judicial costs, but also for the damages suffered by the company, as a direct result of their refusal.

As the quantum of damages was to be determined in separate legal proceedings, this court did not have to decide at this stage the percentage of responsibility of each party in this case.

Dr Grech Orr is a partner at Ganado & Associates.