Proving construction defects at trial is essential, but what is the best way to do it?
It is not enough simply to discredit the damage or play it down. The repair of the construction defects in a building must be argued in a reasoned, professional way.
The claimant’s expert must always set out the cause of the damage and the cost of repairing it, –advising on the solution and the cost of the repairs, or of a complete rebuild-.
And the defendant must put forward its own alternative.
Article 427 of the LEC states that each party must state whatever suits its case, whether admitting the opposing (expert reports), contradicting them or proposing that they be extended, in whatever respects it sees fit.
When compensation is sought, the following must be included:
– Proof of the loss and damage, whose existence and proof are a question of fact.
– Attribution of the damage to wilful, negligent or dilatory conduct by the defendant.
– The difference between the current state of the claimant’s assets and the state they would be in had the harmful act not occurred.
Once the damage, the compensation and the liability for the construction have been established, the defendant must put forward convincing alternatives that contradict those presented by the claimant.
The alternatives should not be “denying for the sake of denying” or “turning a blind eye”, ignoring the damage, or saying in general terms that the claimant is “using a sledgehammer to crack a nut” or that “it is an exaggeration”, but should, using reasoning similar to that of the claim, value the damage (which are proven facts) and consider cheaper but equally safe alternatives, thereby producing another expert valuation worthy of the judge’s consideration.
If this is done, and the reasoning takes into account the technical possibilities available at that time, the court will clearly have both valuations before it; so it is not a question of not proving, not looking or discrediting, but of contradicting properly and getting closer to what is fair.
If the defendant takes the path of “not looking”, “looking the other way” or “denying everything outright”, the judge will have no alternative and will accept everything the claimant puts forward.
Any questions?