Negligence – Planning advice – Limitation – Claimant alleging giving of negligent planning advice by defendant in 2003 – Claim commenced in 2010 – Whether claim in tort statute-barred – Whether claimant entitled to pursue claim in reliance on section 14A(4)(b) of the Limitation Act 1980 on ground that requisite knowledge to bring claim not possessed until later date when planning situation resolved – Defendant’s application to strike out claim dismissed – Appeal allowed
Around March 2003, the claimant engaged the defendant to provide planning advice in relation to a former oil distribution site in Rochester; the defendant advised that planning consent was not required to demolish the numerous large fuel storage tanks on the site and that the site could be let out for storage and distribution. The claimant immediately demolished the tanks.
By 2005 or 2006, it became apparent that the local council were concerned that the site, which had planning permission for fuel storage, was being used for general storage and distribution. By correspondence in 2006, they made it clear that a retrospective planning application would be needed. Although the claimant took preparatory steps towards the making of such an application, none was ever submitted. In March 2007, the council served a planning contravention notice on the claimant, followed by an enforcement notice in July 2007. A lengthy series of appeals followed and further enforcement notices were issues in November 2008. The later enforcement notices were upheld in June 2010; an appeal against that decision was dismissed in July 2011 and permission to appeal was refused in July 2012.
Meanwhile, in June 2010, the claimant brought a claim against the defendant for negligence in giving its original advice in 2003. The defendant applied to strike out the claim on the ground that it was statute-barred. The claimant accepted that any claim in contract would be so barred but contended that its claim in tort was not; it submitted that it had not had the requisite knowledge to bring the claim, for the purposes of section 14A(4)(b) of the Limitation Act 1980, until the planning situation had been resolved. The strike-out application was allowed in relation to the contract claim but dismissed in relation to the claim in tort. The defendant appealed.
Held: The appeal was allowed.
The claimant’s particulars of claim stated that the relevant damage had occurred in 2003 as a result of the removal of the storage tanks at that time in reliance on the defendant’s advice. The claimant accepted that some damage occurred in 2003, namely the loss of its bargaining position with the council in relation to what could be done with the site. On the claimant’s case, the failure to deal with the planning position before removing the tanks meant that there was always going to be loss and extra expense when the council subsequently insisted on a retrospective planning application. The only sensible conclusion was that the damage had occurred in 2003. It followed that the claim, being brought more than six years from the date of breach or damage, was statute-barred unless the claimant could establish that it had lacked the necessary knowledge until less than three years before it brought its proceedings, so as to come within section 14A(4)(b).
The onus was on the claimant to advance a proper case under section 14A(4)(b). It had failed to do so. The relevant knowledge for the purposes of section 14A(40(b) was knowledge in broad terms of the facts on which the claimant’s complaint was based; the claimant needed to know that there was a real possibility that the defendant’s acts or omissions had been a cause of the damage but did not need to have sufficient knowledge to enable legal advisors to draft a fully particularised statement of claim. What was required was knowledge of the “essence” of the act or omission to which the injury was attributable: Haward v Fawcetts (a firm) [2006] UKHL 9; [2006] 1 WLR 682; [2006] 10 EG 154 (CS) and Nash v Eli Lilly & Co [1993] 4 All ER 383 applied. The claimant had failed to advance any evidence as to its levels of knowledge or as to how and why it lacked the necessary knowledge before the final resolution of the planning process. The mere fact that the planning process and the various appeals had taken several years did not, without more, mean that section 14A(4)(b) was not triggered until the end of the process. It was insufficient for the claimant merely to rely on a broad argument of alleged principle as to what a party involved in a lengthy dispute about the absence of planning permission could and could not have known about the possibility of challenging the advice that it had originally been given. Section 14(4)(b) required evidence of the claimant’s actual state of knowledge; the precise nature, scope and extent of that knowledge was a basic ingredient if the claimant was to maintain a defence under section 14A(4)(b). The claimant had advanced no evidence on which it could prove that it did not know of essential facts until less than three years before the commencement of the proceedings. The only fair inference was that it was unable to put forward any specific evidence on the point. It followed that the claimant’s “knowledge” defence under section 14A(4)(b) was not made out on the evidence.
Furthermore, on the basis of the factual evidence before the court, and in the absence of any contrary evidence from the claimant, the claimant had had the requisite knowledge either in 2006 or no later than March 2007, by which time the council’s stance was plain to all. For that reason too, the claim was statute-barred.
Matthew Horton QC (instructed by Goldkorn Matthias Gentle Page LLP) appeared for the claimant; Sean Brannigan QC (instructed by CMS Cameron McKenna LLP) appeared for the defendant.
Sally Dobson, barrister
Britannia Assets (UK) Ltd v Roger Ward Associates Ltd
Negligence – Planning advice – Limitation – Claimant alleging giving of negligent planning advice by defendant in 2003 – Claim commenced in 2010 – Whether claim in tort statute-barred – Whether claimant entitled to pursue claim in reliance on section 14A(4)(b) of the Limitation Act 1980 on ground that requisite knowledge to bring claim not possessed until later date when planning situation resolved – Defendant’s application to strike out claim dismissed – Appeal allowedAround March 2003, the claimant engaged the defendant to provide planning advice in relation to a former oil distribution site in Rochester; the defendant advised that planning consent was not required to demolish the numerous large fuel storage tanks on the site and that the site could be let out for storage and distribution. The claimant immediately demolished the tanks.By 2005 or 2006, it became apparent that the local council were concerned that the site, which had planning permission for fuel storage, was being used for general storage and distribution. By correspondence in 2006, they made it clear that a retrospective planning application would be needed. Although the claimant took preparatory steps towards the making of such an application, none was ever submitted. In March 2007, the council served a planning contravention notice on the claimant, followed by an enforcement notice in July 2007. A lengthy series of appeals followed and further enforcement notices were issues in November 2008. The later enforcement notices were upheld in June 2010; an appeal against that decision was dismissed in July 2011 and permission to appeal was refused in July 2012.Meanwhile, in June 2010, the claimant brought a claim against the defendant for negligence in giving its original advice in 2003. The defendant applied to strike out the claim on the ground that it was statute-barred. The claimant accepted that any claim in contract would be so barred but contended that its claim in tort was not; it submitted that it had not had the requisite knowledge to bring the claim, for the purposes of section 14A(4)(b) of the Limitation Act 1980, until the planning situation had been resolved. The strike-out application was allowed in relation to the contract claim but dismissed in relation to the claim in tort. The defendant appealed.Held: The appeal was allowed. The claimant’s particulars of claim stated that the relevant damage had occurred in 2003 as a result of the removal of the storage tanks at that time in reliance on the defendant’s advice. The claimant accepted that some damage occurred in 2003, namely the loss of its bargaining position with the council in relation to what could be done with the site. On the claimant’s case, the failure to deal with the planning position before removing the tanks meant that there was always going to be loss and extra expense when the council subsequently insisted on a retrospective planning application. The only sensible conclusion was that the damage had occurred in 2003. It followed that the claim, being brought more than six years from the date of breach or damage, was statute-barred unless the claimant could establish that it had lacked the necessary knowledge until less than three years before it brought its proceedings, so as to come within section 14A(4)(b).The onus was on the claimant to advance a proper case under section 14A(4)(b). It had failed to do so. The relevant knowledge for the purposes of section 14A(40(b) was knowledge in broad terms of the facts on which the claimant’s complaint was based; the claimant needed to know that there was a real possibility that the defendant’s acts or omissions had been a cause of the damage but did not need to have sufficient knowledge to enable legal advisors to draft a fully particularised statement of claim. What was required was knowledge of the “essence” of the act or omission to which the injury was attributable: Haward v Fawcetts (a firm) [2006] UKHL 9; [2006] 1 WLR 682; [2006] 10 EG 154 (CS) and Nash v Eli Lilly & Co [1993] 4 All ER 383 applied. The claimant had failed to advance any evidence as to its levels of knowledge or as to how and why it lacked the necessary knowledge before the final resolution of the planning process. The mere fact that the planning process and the various appeals had taken several years did not, without more, mean that section 14A(4)(b) was not triggered until the end of the process. It was insufficient for the claimant merely to rely on a broad argument of alleged principle as to what a party involved in a lengthy dispute about the absence of planning permission could and could not have known about the possibility of challenging the advice that it had originally been given. Section 14(4)(b) required evidence of the claimant’s actual state of knowledge; the precise nature, scope and extent of that knowledge was a basic ingredient if the claimant was to maintain a defence under section 14A(4)(b). The claimant had advanced no evidence on which it could prove that it did not know of essential facts until less than three years before the commencement of the proceedings. The only fair inference was that it was unable to put forward any specific evidence on the point. It followed that the claimant’s “knowledge” defence under section 14A(4)(b) was not made out on the evidence.Furthermore, on the basis of the factual evidence before the court, and in the absence of any contrary evidence from the claimant, the claimant had had the requisite knowledge either in 2006 or no later than March 2007, by which time the council’s stance was plain to all. For that reason too, the claim was statute-barred.Matthew Horton QC (instructed by Goldkorn Matthias Gentle Page LLP) appeared for the claimant; Sean Brannigan QC (instructed by CMS Cameron McKenna LLP) appeared for the defendant.Sally Dobson, barrister