A party's expert report counts only if the expert testifies

On 2 February 2026, the Court of Appeal dismissed a building owner's claim of more than €4 million under a 10-year insurance policy covering the glass façade of its office building. The court held that reports by experts the owner had engaged were not evidence, because the experts never testified on oath as article 563A of the Code of Organization and Civil Procedure requires. It also held that a defendant's failure to answer a claim does not relieve the plaintiff of proving it with the best evidence.

The facts

St George's Park Co. Limited vs Generali Italia S.p.A. concerns a façade of about 1,800 double-glazed panels. An Italian contractor, since insolvent, built it under a contract of works. As part of the deal, a 10-year policy starting in September 2012 named the owner as insured against serious construction defects within the meaning of article 1669 of the Italian Civil Code.

The policy is governed by Italian law and gives exclusive jurisdiction to the courts where the insured has its seat. From 2013, the coating on the glass began to peel, and the First Hall recorded that by December 2023 the defect had spread to about two-thirds of the panels. The insurer refused cover, and mediation in Italy failed.

The owner sued in Malta in June 2022, claiming the cost of replacing the façade, which it estimated at €4,275,811. The insurer did not file a reply or appear, so it was in default. On 13 June 2024, the First Hall of the Civil Court accepted jurisdiction but dismissed the claim for lack of proper proof.

The owner appealed. Chief Justice Mark Chetcuti, Mr Justice Giannino Caruana Demajo and Mr Justice Anthony Ellul heard the appeal.

What the court held

The First Hall found, on Italian case law, that a defect is serious under article 1669 when it materially affects the use and serviceability of the building. The owner had to prove that its façade had such a defect.

The owner relied on two reports by experts it had engaged, which warned that panels could fall into the street. The experts were never called. A director of the owner annexed the reports to his affidavit and repeated their conclusions, but he is not a technical expert.

Article 563A admits the opinion of a party's expert only when that person is called as a witness. The court held that such reports “ma jgħoddux bħala prova jekk mhux ikkonfermati bil-ġurament tagħhom stess” (do not count as evidence unless confirmed on their own oath). Without them, there was no proof of a serious defect, so the questions of exclusions and quantum did not arise.

The owner argued that the insurer's default left its evidence uncontradicted. The court held that default in Maltese law amounts to contesting the whole claim, not to an admission. Unsworn documents may carry weight only against the background of other proof, or where the other side exempts the producing party from confirming them.

The owner also argued that the First Hall should have refused the evidence during the case under articles 559 and 560, instead of disregarding it in the judgment. Relying on its judgment of 27 February 2024, the court held that a party cannot shelter behind those articles when the best evidence was readily available and it chose not to produce it.

Nor did the First Hall raise a plea of its own motion in breach of article 732A. The court held that it simply weighed the evidence, as it had to do before giving judgment.

The court departed from the First Hall on two points. It found that the policy was in force, because the broker's receipt for the premium showed that the insurer was satisfied its conditions were met. It also found that the defendant alone had taken over the obligations under the policy, since it alone corresponded, mediated and litigated on the policy in Italy.

Those findings did not change the result. The court dismissed the appeal and ordered the owner to pay the costs of both instances.

Why it matters

A party-appointed expert must be called to testify. Annexing the report to someone else's affidavit is not enough, even when the defendant never appears, and the same applies to repair quotations prepared by third parties. On a large technical claim, the plaintiff should call the expert or ask the court to appoint one.

Where it sits

The case applies the best evidence rule in article 559 of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta). It also applies the rule that a document not confirmed on oath by its author does not prove its contents, subject to the exceptions in articles 627 to 629. Article 563A qualified the older rule that only court-appointed experts could give opinion evidence.

On the civil standard of proof, the court cited the Court of Appeal (Inferior Jurisdiction) (17 March 2003). On default as a contest, it relied on its judgment of 10 October 2003. On the weight of unsworn documents that support sworn evidence, it cited its judgments of 7 October 1997 and 26 May 2017.

The First Hall judgment, whose reasoning on article 563A the court adopted, cited the Court of Appeal (Superior Jurisdiction) (19 October 1983 and 30 January 2004) and the First Hall (14 November 2002 and 15 December 2003) on unsworn documents. On a court's duty not to search for evidence a party failed to bring, it cited the Court of Appeal (Superior Jurisdiction) (12 July 2023).

Source

Court of Appeal (Superior Jurisdiction), 454/2022/1, 2 February 2026.