Limitation of action — Preliminary point at issue — Council requiring repairs to property at tenant’s behest — Person in control of premises failing to comply — Council carrying out the necessary repairs — Written demands for expenses incurred not met — Council issuing summons — Whether cause of action accruing from date of completion of the works or from service of demands — Council’s appeal dismissed
In 1983 the tenant of 96 King Edward Road, Swansea, complained to the appellant council about the condition of the property. The council issued two notices under section 9(1)(b) of the Housing Act 1957 against the respondent (as executor of Mr H Glass) requiring that the house be put into proper repair. The notices were not complied with and the council did the necessary works themselves, so that the works required by the first notice were completed in September 1983. The council served written demands for the expenses under the notices in May 1984 and April 1985 which the respondent failed to pay. In May 1990 the council issued a summons seeking payment. The summons was thus issued more than six years after completion of the works but less than six years from the service of the demands. In deciding when the council’s cause of action accrued, the judge held that the council’s action was statute-barred. The council appealed.
Under section 10(1) of the Housing Act 1957, “the local authority may themselves do the work required to be done by the notice…”. Section 10(3) provides that: “Any expenses incurred by the local authority … together with interest from the date when a demand for the expenses is served until payment, may …be recovered…by action or summarily as a civil debt, from the person having control of the house…”. Section 9 of the Limitation Act 1980 provides that an action to recover any sum “shall not be brought after the expiration of 6 years from the date on which the cause of action accrued”.
Held The appeal was dismissed.
1. The 1957 Act was in force at the time of the notices, the works and the demands for payment, so that the council’s argument that the Housing Act 1985 applied to the present case was rightly rejected by the judge. In any event, the council had conceded that the time when the cause of action arose would have to be the same under both Acts.
2. The council had rightly submitted that although the Act did not expressly say so, it was implicit in sections 10 and 11 that a demand for expenses had to be served by the local authority before proceedings could be taken to recover them.
3. However, with regard to the argument that service of the demand was not merely a procedural requirement but an essential ingredient in the cause of action was not accepted. In Coburn v Colledge (1897) 1 QB 702, the classic definition of a cause of action was that “the plaintiff in order to make out a cause of action must assert certain facts which, if traversed, he would be put to prove”. Thus a cause of action might well accrue before — for procedural reasons — the plaintiff could bring proceedings. Where the cause of action arose from statute, the question as to what was merely procedural and what was an inherent element in the cause of action was one of construction.
4. In the present case, according to the provisions, a local authority would have to prove: (a) that a notice was served in accordance with section 10(1) on the person in control to execute works; (b) that he failed to do so; (c) that the local authority themselves did the works; and (4) they had incurred expenses in so doing. That disclosed a cause of action.
5. The phrase “together with interest from the date when a demand for the expenses is served until payment” (section 10(3)) showed that interest ran only from the date of the demand and (by implication) not from the date when the cause of action arose.
6. Section 10(4) expressly provided that where the local authority opted to take summary proceedings to recover their expenses, the limitation period ran from the date of the service of the demand. No such provision applied to proceedings in the High Court or county court. By implication, time in those proceedings did not run from the date when the demand was served. The rationale of the distinction between summary and other proceedings probably lay in the respective limitation periods. In summary proceedings it was six months. If time were to run from the accrual of the cause of action, ie when the expenses were incurred, summary proceedings might often be statute-barred before they could be brought. In other proceedings, where the limitation period was six years, the local authority had ample time to sue. Otherwise the local authority could delay service of a demand indefinitely and, having served it long after the work was completed, would have a further six years in which to take proceedings in the High Court or the county court.
Kenneth Thomas (instructed by Sharpe Pritchard as agents for the solicitor to the council) appeared for Swansea City Council; and Robert Kirk (instructed by Peter Williams & Co, of Swansea) appeared for the respondent.
