The Court of Appeal has reserved judgment in a dispute over whether two claims for damages for defective building work were time-barred.
Hilda Alderson and her daughter, Avril, are challenging a Liverpool County Court ruling striking out their claims against Beetham Organisation Ltd. The court ruled that the claims had not been brought within the time limit set out in the Defective Premises Act 1972.
The claimants own flats 1 and 2 at 1 Livingstone Drive North, Liverpool, and are seeking damages from Beetham in respect of allegedly defective tanking and damp-proof membranes at the premises.
The flats were completed in May 1994, but Beetham returned in May and September 1995 to carry out further work, which was not itself defective, to the exterior of the premises. The Aldersons subsequently appointed a surveyor, who inspected the premises and concluded that the tanking and damp-proof membrane were defective.
The claimants issued proceedings in January 2001, and Beetham sought to have the claims struck out on the ground that they had not been brought within the time limit for such claims, namely within six years of the completion of the dwelling.
The county court ruled that the claims were time-barred, dismissing the Aldersons’ contention that their claims fell within section 1(5) of the 1972 Act, which defines the date upon which the cause of action arises as the date of completion of any remedial work.
In the Court of Appeal, Kevin Musaheb, counsel for the Aldersons, argued that consideration had to be given not only to the nature of the further work but also to the reason for undertaking it.
He said that the further work, although competently carried out, had been intended to rectify the previous defective work, but had failed to do so. He maintained that the time limit for issuing proceedings therefore ran from the date upon which the further work was completed.
However, Anthony Edwards-Stuart QC, counsel for Beetham, said that the problems with the tanking and damp-proof course were unknown prior to the inspection by the Alderson’s surveyor, which was not carried out until after the further work had been done.
He said that, on the facts of the case, the judge had been correct to hold that the “cause of action upon which the appellants rely – the installation of defective tanking and damp-proof membrane – accrued on 24 May 1994”, and that the claims were, in the circumstances, time-barred.
Alderson and another v Beetham Organisation Ltd Court of Appeal (Aldous, Judge and Longmore LJJ) 6 March 2003.
Kevin Musaheb (instructed by DP Hardy & Co, of Liverpool) appeared for the appellants; Antony Edwards-Stuart QC and Ian Swan (instructed by Bullivant Jones, of Liverpool) appeared for the respondent.
References: PLS News 7/3/03
