28 April 2011

Don’t put off until tomorrow a claim you can pursue today

The Message: There are strict time limits for bringing property claims

The Case: A builder sought to avoid liability for faulty work on the basis that the claim was brought too late (Clinton Eagle v Redlime, 04.04.11). In 2000, Clinton Eagle employed Redlime to build the concrete base and ground drainage for a kennel block at his property in Oxford. Other contractors then built the block.

In early 2006, Eagle noticed cracks in the rendering, and that part of the drainage system was sinking. He did not connect these defects with the work undertaken by Redlime, or consider them to be serious.

He carried out the repairs he thought appropriate. In late summer, Eagle noticed the rendering had cracked again and the drainage was still sinking. He was worried about subsidence and asked Philip Harmsworth of Redlime to inspect it.

Eagle notified his solicitors and insurers. Harmsworth inspected the damage in September and wrote to Eagle on 12 October denying liability. Eagle instructed an engineer to inspect the damage and advise him.

The engineer’s report on 15 November said Redlime had constructed the concrete base in three sections that had not been properly tied together and that the foundations were too shallow. It said underpinning was required.

This was the first time Eagle became aware of the cause of the subsidence. On 15 December 2006, his solicitor sent a letter of claim to Redlime, but proceedings were not issued until 29 October 2009 – nine years after Redlime had done the work.

The Limitation Act 1980 says claims for breaches of contract or negligence have to be brought within six years of the breach or damage. If the damage and its cause are not evident to begin with, section 14a of the act allows a further three years from the date the claimant acquires the knowledge.

Eagle said the proceedings commenced within three years, as it was not until he received the engineer’s report in November 2006 that he knew the cause of the problem and who was responsible. Redlime, however, argued that Eagle could have brought a claim before 29 October 2006.

The court reviewed previous case law on what constitutes sufficient knowledge. It noted that the level of knowledge required was less than knowing for certain all the facts: a reasonable belief that the defendant had caused the damage and that a claim was worth investigating sufficed.

The court held that Eagle had knowledge of the damage before 29 October 2006 as that he was aware there was a subsidence problem. He also knew the relevant works had been done by Redlime and the fact he had instructed solicitors at that time and called Redlime in to inspect the damage proved he had a reasonable belief who was responsible.

He therefore had the knowledge to launch a claim before obtaining the engineer’s report and, in fact, had commissioned the report to help with this claim. By delaying too long, Eagle lost the opportunity to pursue what appears to have been a strong case.

Summing up: Clinton Eagle v Redlime

  • Eagle brought action against Redlime nine years after Redlime did the work
  • Eagle claimed he did not have the information to bring a claim any sooner
  • The claim was not allowed. The court said he had enough knowledge to bring it sooner.

 

First seen in Property Week, 28 April 2011

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