Injurious affection — Compensation claim — Claim not referred to Lands Tribunal within six-year time limit — Ongoing negotiations — Whether estoppel arising from convention or representation that time limit would not be relied upon — Appeal dismissed
The respondent was authorised to construct part of the westbound tunnel for the Jubilee Line extension under the appellant’s premises pursuant to the London Underground Act 1992. It served a notice to treat and a notice of entry in respect of the subsoil in July 1994. In a letter dated December 1994, the respondent acknowledged that the appellant might be able to claim compensation for injurious affection in respect of any structural damage caused by the works, but stated that “no claims… will be considered if received later than two years from the opening of the Jubilee Line Extension to the public”. The entire line extension was finally open to the public in December 1999.
The correspondence and negotiation over the injurious affection issue, initiated by the 1994 letter, continued up to October 2002. The parties failed to agree, and, in November 2002, the appellant referred its claim to the Lands Tribunal. It was not disputed that such a reference was “an action to recover” a sum within the meaning of section 9(1) of the Limitation Act 1980, and that the time limit for bringing it had therefore expired in July or August 2000, six years after the cause of action accrued upon the respondent’s entry onto the land. However, the appellant contended that the respondent was estopped from relying upon a limitation defence, because of a convention between the parties, or a representation by the respondent, that there would be no reliance on the six-year period so long as a claim was submitted within two years of the opening of the line extension to the public. There was evidence before the tribunal that the parties had been unaware of the applicability of the 1980 Act. The tribunal held that the claim was time-barred, and the appellant appealed.
Held: The appeal was dismissed.
The mere fact that the parties engaged in considerable negotiations regarding a claim for injurious affectation both before and after the limitation period expired did not, of itself, create any estoppel preventing the respondent from relying upon a limitation defence. It might often be that an authority was prepared to continue negotiations in the hope of reaching an amicable settlement on the amount of compensation but without abandoning a limitation defence if negotiations broke down. The appellant’s case turned crucially on the 1994 letter. The representation contained in that letter had to be construed as it would have been seen in 1994, and not with the benefit of hindsight. Nothing indicated that the two-year limit on claims, contained in the 1994 letter, would at that time have seemed inconsistent with the statutory six-year limit on a reference to the Lands Tribunal. No estoppel by representation arose. Although it appeared that both parties had been unaware of the applicability of the Limitation Act 1980 at the time, no estoppel by convention could arise from this in circumstances where the shared mistaken assumption had not been communicated between the parties: Hillingdon London Borough Council v ARC Ltd (No 2) [2000] RVR 283; [2000] 3 EGLR 97 applied.
Richard Glover (instructed by Allen & Overy) appeared for the appellant; Neil Cameron (instructed by Watmores) appeared for the respondent.
Sally Dobson, barrister
