Time Limits Prevent Flooding and Damp Claim
Posted: 24th June 2011
A couple who had large-scale alterations to their house done, including the creation of a substantial basement room, found that the basement suffered from substantial water penetration, which commenced shortly after it was completed in 2001.
The ingress of water necessitated substantial remedial work. However, between 2002 and 2008, however, damp sports appeared and the problem worsened. By the summer of 2008, water was beginning to accumulate under the floor.
The homeowners commenced legal proceedings against the architects and builders in 2010. Various claims were made, of which almost all related to the original construction work done. The defendants argued that the couple’s claim was ‘out of time’ under the Limitation Act.
The builder argued that a claim for breach of contract would have had to be brought by 2008 (six years after the date of the relevant breach). A claim in tort (i.e. for damages due to a civil wrong) would have to be brought within three years of the damage for which compensation is sought occurring. The damage initially occurred between late 2001 and the March 2002, making a claim after March 2005 ‘out of time’.
The couple argued that they did not have sufficient knowledge to commence a claim until 2007, so the claims were ‘in time’.
The starting date for making such a claim is the ‘earliest date’ on which the claimant had the knowledge of sufficient essential facts to bring a claim in damages or to take advice about bringing a claim.
The judge concluded that the couple had sufficient knowledge in 2002 to ‘set the clock running’ with regard to all the claims relating to the original construction work. Those claims were therefore out of time and failed. The two claims that related to the rectification work could be argued to be ‘in time’ and remain to be tried in court.
When you discover a problem which may lead to a claim in damages, it is essential to act promptly. Failure to do so can be a very expensive error if it leads to the court refusing to hear a claim because it has not been brought in time.