The High Court has reinforced the principle that the onus is on the claimant should it wish to rely on Section 14A of the Limitation Act 1980 in an otherwise time-barred claim. In this case, Mr Justice Coulson struck out the claimant’s claim and granted the defendant summary judgment, on grounds that the claimant’s claim was time barred.

Background to the dispute

The claimant developer was suing the defendant architect in relation to planning advice provided by Roger Ward Associates. The claimant had purchased a former industrial site which contained redundant fuel storage tanks. The claimant sought the defendant’s advice as to whether it would require planning permission to remove the fuel storage tanks and use the site for open storage; it was argued Mr Ward advised no planning permission was required. Based on this advice, the claimant removed the tanks in early 2003. However, in July 2007 Medway Council issued enforcement notices alleging a breach of planning control, requiring the claimant to cease all use of the site. After a lengthy planning process, in June 2010 the planning inspector reported that the site had “nil lawful use” from May 2003, when the tanks were first removed. The claimant issued proceedings against the architect in June 2010.

Application to strike out the Claim

It was conceded by Britannia that it could not advance any claim in contract as it was time-barred by reason of section 5 of the Limitation Act 1980 (which provides for six years from the date on which the cause of action accrued). The claimant must, therefore, find a case in tort; under section 2 of the Limitation Act 1980 claims made in tort become time-barred six years after damage is suffered as a result of the wrongful act. At both first instance and appeal, the Court found that the damage occurred in 2003, when the tanks were removed.

However, under section 14A of the Limitation Act 1980 a claimant is allowed to bring a claim in tort three years after he was first aware, or should have become aware, that he could bring an action for negligence, if that three years extends beyond the 6 year period from the damage coming into existence. So, Britannia had to argue that it did not have the necessary knowledge more than three years before it issued proceedings.

Onus/Burden

The House of Lords made clear in the leading case of Haward v Fawcetts [2006] 1 WLR 682 that “under s.14A the onus is on a claimant to plead and prove that he first had the knowledge required for bringing his action within a period of three years prior to its bringing.” The requisite level of “knowledge” was addressed in Haward v Fawcetts whereby knowledge is broadly the facts on which the claimant’s complaint is based, where there is a real possibility that the defendant’s act had been a cause of the damage. Lord Nicholls of Birkenhead said “it is not necessary for the claimant to have knowledge sufficient to enable his legal advisors to draft a fully and comprehensively particularised statement of claim”; what was required was knowledge of the ‘essence’ of the act or omission to which the injury was attributable.

In this case, however, Britannia did not adduce evidence as to what knowledge it had and why it did not have the requisite level of knowledge before the resolution of the planning process in June 2010. In contrast, the architect referred to correspondence between the parties showing that Britannia was aware that the planning situation needed “to be regularised” in May 2006 and that in March 2007 Medway Council commenced enforcement action, due to breach of planning controls. Mr Justice Coulson concluded that there was no evidence on which the claimant could prove it did not know of the essential facts before June 2007 and the claim struck out.

Comment

In light of this affirmation of Haward v Fawcetts, parties should take note that the burden of proof is on the claimant, should it wish to rely on section 14A of the Limitation Act 1980. If a claimant has, in broad terms, sufficient knowledge of the facts on which the ultimate claim is based for him to begin to investigate whether or not he has a claim against the defendant, time will begin to run. This is a stark warning to potential claimants not to wait until they know ‘without a shadow of a doubt’ that a claim will proceed, but to take careful note of when they first knew that damage had been suffered and not delay in issuing proceedings.

Further reading: Britannia Assets (UK) Limited v Roger Ward Associates Limited [2013] EWHC 1653 (QB)