Whilst the tragedy at Grenfell Tower and the subsequent Inquiry have focused attention on issues in relation to defective and unsafe buildings, in particular those with defective cladding, such cases are by no means unknown and have been the subject of decisions by the Courts for many years. There is now, however, a renewed focus on these issues and indeed a number of cases have come before the Courts recently which have been prompted or affected by the Grenfell tragedy. Such cases will no doubt be a feature of the Courts' business for many years to come. It is instructive to review some of the more recent cases to see some of the issues that commonly arise in such cases and how the Courts have been dealing with them.

The nature of such cases, relating as they do to defects that are often discovered many years after the building was constructed and sometimes after the original owners or developers have departed, often cause difficulties for Claimants. Such difficulties often focus upon issues in relation to limitation if the claims are started in the Court close to or beyond the expiry of the relevant limitation period.

This is an important issue because, broadly, the expiry of a limitation period within which claims can be started in the Court is an absolute defence to any such claim. This defence can, however, be overcome if it can be shown that the Defendant has deliberately concealed facts which were relevant to the Claimant's cause of action. Importantly, this will be the case even if the Defendant had already acquired a limitation defence before the concealment took place. This is a principle that was reiterated in the decision in RG Securities (No. 2) Limited v Allianz Global Corporate and Specialty CE [2020] EHWC 1646 (TCC). If deliberate concealment can be proven the limitation period will be taken to run from the date when the concealment was discovered.

Perhaps the most interesting recent decision in relation to limitation issues, again arising out of defects in cladding, was Martlet Homes Limited v Mullaley & Co Limited [2021] EWHC 296 (TCC). In this case the Claimant brought a claim against the Defendant contractor for breach of contract and negligence in respect of certain tower block refurbishment works. The claim was issued by the Claimant a matter of days before the 12 year limitation period expired in relation to two out of the five tower blocks concerned and less than four months before two other towers. The claim form and particulars of claim were served just before the claim form expired. As a consequence, any fresh action in respect of any of the towers would be out of time. In its defence the Defendant admitted a number of breaches of contract but denied the alleged breaches had caused any loss on the basis that, following the Grenfell Tower fire in June 2017, it was in any event required to replace the combustible expanded polystyrene (EPS) cladding fitted to the towers. In its reply the Claimant responded specifically to the EPS issue, effectively saying that even if its other claims failed the claim in relation to the EPS cladding would still stand. The question was therefore whether this amounted to a new claim rather than simply a response to the defence. It is well established that a Claimant cannot raise a new claim or cause of action in its reply.

The arguments around the application of the Limitation Act and the technicalities of pleading are too lengthy to go into here, but in short the Court decided that the relevant paragraphs of the reply had to be struck out because they were indeed a new cause of action. The Court however granted the Claimant permission to amend its particulars of claim to introduce the EPS issue. The case is well worth reading for its clear and helpful judgment concerning what can and can't go into a reply and also the interaction between section 35 of the Limitation Act and Civil Procedure Rule 17.4, which permits the Court to allow an amendment to add a new claim after the expiry of the limitation period provided it arises out of the facts or substantially the same facts as "are already in issue" in an existing claim, as was the case here.

The cladding and defective buildings cases currently before the Courts will undoubtedly raise further issues in relation to limitation and other matters such as recovery of claims in tort, health and safety legislation and the application of the Defective Premises Act 1972. In this regard it is also interesting to see the recent decision in Naylor and others v Roamquest Limited and another [2021] EWHC 567 (TCC) where the Court adjourned a strikeout and summary judgment application by the Defendants to give the Claimants (tenants of a high rise residential block with defective cladding) the opportunity to amend their pleadings. This is one of a number of cases which no doubt will be followed closely, particularly if it proceeds to trial.

First published in Building Magazine (16 April 2021).