Renwick & anr v simon and michael brooks architects & others

[2011] EWHC 874 (TCC)

The Second Defendant, William Attwell and Associates, ("Attwell"), applied to strike out the claim against them on the grounds that its limitation defence was bound to succeed. Attwell, a firm of structural engineers, was engaged by the Renwicks in the period 2000 to 2002 as part of a project to extend and refurbish their home. The Renwicks said that they engaged Attwell to provide "structural advice on design...such that the completed Garden Room would be suitable for both building regulation approval and construction purposes, which…required that the said structural advice and design should deliver a watertight structure." Work was finished by about November 2001. Fairly soon thereafter, quantities of water came into the Garden Room and had to be pumped out. There clearly was a serious problem which continued into 2002. Remedial works were carried out however, between June 2002 and May 2008 and isolated damp spots appeared in the ceiling of the Garden Room which were repaired. But by the summer of 2008 water started to accumulate under the flooring in the Garden Room.

The Renwicks issued a claim for over £900k in July 2010. The claim included an allegation that since 2008 they had caused investigations "to be carried out to show that the internal render and/or reinforced concrete has cracked and/or that the internal render has become de-bonded from the reinforced concrete structure". Attwell claimed that the claims in contract and in tort were statute barred. Any claim in contract ran from the date of the relevant breaches (if any) which must all have occurred no later than 2002, i.e. some eight years before the issue of proceedings. Any claim in tort, Attwell said must run from the date when damage first occurred which was between late 2001 and about March 2002 when serious flooding occurred. For the purposes of Section 14A of the Limitation Act 1980 (which essentially serves to extend the limitation period by three years from the date of knowledge of the claim) Attwell said that more than enough had occurred and was known about by the Renwicks in 2002 to set the three-year time period to start running. The Renwicks’ argued however that this was not a case which is suitable for summary judgement because there may have been separate damage flowing from the possibly negligent involvement of Attwell in 2002 or indeed from earlier breaches of duty on its part. The Renwicks said they should not, at least on a summary judgement application, be judged as having had sufficient knowledge before 2007 to justify the three-year period referred to in Section 14A to start running.

Mr. Justice Akenhead noted that Section 14A has been considered in a number of cases, the upshot of which was that:

(a) The starting date for the three-year period under Section 14A is the "earliest date" on which any given Claimant had the knowledge required for bringing a claim in damages in relation to the damage ...Knowledge in this context does not mean certainty but knowledge of sufficient essential facts or matters to institute either a claim or the taking of advice or the collation of evidence will often suffice to institute the "earliest date".

(b) This "knowledge" is of the material facts about the damage for which damages are claimed and of other facts relevant to the claim (Section 14A (6)). These are such facts as would lead a reasonable person who had suffered the damage in question to consider it sufficiently serious to justify instituting proceedings for damages... such facts include that the damage in question is attributable at least in part to the basic acts or omissions said ultimately to constitute negligence and the identity of the defendant

One difficulty for the Renwicks was that, with one exception, all the complaints of breach of duty, related to alleged failures of Attwell which had occurred up to the supposed completion of the works. For example, the complaint that Attwell had failed to specify adequate reinforcement must have been at design stage or at latest during construction of the reinforced concrete work. Further, the pleaded facts did not suggest that Attwell actually advised on the remedial solution. The evidence also suggested that it had crossed Mrs Renwick’s mind that Attwell were at least in part to blame in that they had some sort of supervision or inspection obligation.

So the Renwicks knew that there was a serious water and flooding problem, that the workmanship was culpably poor and that the waterproofing had failed. They had knowledge of the material facts about the damage, that damage being either the fact of serious water penetration or the financial loss of having a concrete structure which, not being waterproof, was substantially valueless, or both. The Judge therefore formed the clear view that for the purposes of Section 14A of the Limitation Act the Renwicks must have had the requisite knowledge required for bringing an action for damages in respect of the relevant damage; certainly they had the right in 2002 to bring an action for damages. The Renwicks had sufficient knowledge to justify embarking on the preliminaries to the issue of a claim, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence. There must have been more than mere suspicion. In other words, the Renwicks must have known enough for it to be reasonable to begin to investigate further. This meant that the vast majority of the claims brought against Attwell were indeed brought out of time.

The only area of the claim against Attwell which did not automatically justify summary judgement were the allegations about culpable advice to the Renwicks that the problems should or could be remedied by applying internal render as opposed to replacing the defective concrete. On that assumption then, the damage from that breach of duty (if ever established) would not arise in 2002 but when damage flowing from that breach occurred, namely when the remedial solution failed. That damage might occur when more than insignificant water penetration first occurred, or if Section 14A was engaged again, when the Renwicks had the required knowledge for bringing an action in relation to this further and later type of damage.