Paul Musa and Robert Goodlad review the recent case of Richardson & Anor v Hills Contractors & Others [2021] EWHC 479 in which the TCC considered the application of S.14A Limitation Act 1980 in the context of an application for summary judgment. As readers will be aware the Limitation Act 1980 allows a claim in negligence to be brought within six years from the accrual of the cause of action or, if that date has passed, section 14A of the Act will also allow a claim to be brought within three years from the earliest date on which the claimant had the requisite knowledge for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
In this case the TCC ruled that where the Claimants had no real prospect of establishing at trial that they had only acquired the requisite knowledge for the purposes of S.14A less than three years before they issued proceedings then the claim was statute-barred.
Facts
In 2008/2009 the first defendant was contracted to provide work for the design and construction of a swimming pool and gym complex for the Claimants. The second defendant provided engineering services for the project. In early 2010 the Claimants observed a small degree of movement in the roof of the complex and asked the second defendant to inspect it.
The Claimants were assured by an email on 4 February 2010 from the second defendant that this movement was not a substantial problem. On 20 July 2015, the Claimants sent a further email to the second defendant which stated that there had been "significant roof movement" which needed inspection and advice from the second defendant. In September 2015, there having been no response from the second defendant, the Claimants restated their concerns to the second defendant in another email.
When the movement continued in early December 2015 the Claimants approached Mr Cuffaro, an independent engineer, to consider the structure. Mr Cuffaro recommended that the Claimants obtain a report from the second defendant, but due to the unresponsiveness of the second defendant, on 11 April 2016 they obtained a report from Mr Forni, an independent structural engineer, which confirmed that there were "serious problems" with the structure.
The claim form was issued on 6 December 2018 and the Claimants submitted that it was not until they received the report on 11 April 2016 that they had the requisite knowledge to bring proceedings. The second defendant refuted this and argued that the proceedings against them were statute-barred on the basis that Claimants had acquired knowledge before 6 December 2015 and that nothing that happened between then and April 2016 added to the knowledge required by S.14A Limitation Act.
Decision
Under S.14A Limitation Act, and as per the judgment of Lord Mance in Haward & Ors v Fawcetts (a firm) & Ors [2006] 1 WLR 682, the onus is on the Claimants to plead and to prove that they first had the requisite knowledge required to bring the action within three years of 6 December 2018 (the primary limitation period having expired). Veronique Buehrlen QC (sitting as a Deputy Judge in the TCC) granted the second defendant's summary judgment application in this instance, and in doing so addressed two fundamental questions:
- Whether the Claimants had the requisite knowledge of the damage in July 2015; and
- Whether the Claimants had knowledge that the damage was attributable, in whole or in part, to an act or omission on the part of the second defendant. Such knowledge requires the Claimants to know of the relevant act or omission.
Concerning the first question, the TCC relied on Lord Nicholl's definition of knowledge (from his judgment in Haward) which "does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ … the claimant must know enough for it to be reasonable to begin to investigate further".
In applying this the TCC ruled that the email from the Claimants to the second defendant on 20 July 2015 sufficed as knowledge. The TCC looked to the wording of the email, and considered that the use of language such as "significant roof movement" clearly highlighted a serious issue. In addition, the Claimants enlisting Mr Cuffaro, a chartered structural engineer, to inspect the roof and advise them in December 2015 illustrates an appreciation on the Claimants' part that the matter needed to be investigated.
Regarding the second question, the TCC stated that the second defendant designed or engineered the structure, and that the damage, that is the significant roof movement, was attributable to that design or engineering. On the basis that "attributable" means "capable of being attributed to" (Haward) the design, then it would have been obvious to the Claimants that the damage might be attributable to the design of the roof.
Comments
Although fact specific, the case serves as a timely reminder of the application of section 14A Limitation Act 1980, and that the House of Lord's guidance in Haward is the starting point in deciding such issues. Construction professionals and insurers can be reassured as these authorities place the onus on the claimant to prove that their claim is not time-barred.
Ultimately, the lack of probative quality in the evidence put forward by the Claimants was why their submissions failed to hold weight. The TCC in its judgment expressly highlighted the absence of any direct evidence from the Claimants in the form of witness statements telling the court what they did or did not know, what they did or did not think, and why. The purpose of section 14A of the Limitation Act is to give a claimant a sufficient period to conduct investigations, as the Claimants did here, but that period is not open-ended and they must act promptly. In doing so, careful use of language when conducting these investigations is vital as the email exchange on 20 July 2015 enabled the second defendant and ultimately the TCC to interpret the communication as evidence of requisite knowledge of the damage.
In summary, this case is a convincing victory for construction professionals and their insurers but those acting for claimants should be even more aware of the danger of the limitation clock running against them. Ultimately these applications will not hinge on when a claimant first knew it might have a legal claim against the defendant, but instead when a claimant knew enough to make it reasonable to investigate further and, if necessary, obtain professional advice on the claim.
For further information please contact the authors:
Paul Musa – Trainee Solicitor
Robert Goodlad - Director
