House purchase — Defendants’ report referring to slight general settlement — Report stated further movement unlikely — Notwithstanding further problems arose in 1990 — Whether plaintiffs having knowledge to mount action — Whether action statute-barred — Whether plaintiffs having actual knowledge in 1990 — First instance decision in favour defendant valuers preparing report in 1983 — Appeal against decision dismissed
In 1983 the plaintiffs wished to purchase 18 Derby Lane, Maghull. The defendants were a firm of surveyors and they prepared a valuers’ report and a valuation at the behest of Halifax Building Society. The report, which was prepared in 1983, included a reference to subsidence of long standing, but went on to state that there were no signs of recent movement and that further movement was unlikely. In 1987 the plaintiffs installed a patio door and the builder told them that the bricks were out of true. In 1990, they wanted another advance from the building society so that the roof could be retiled and the builder then told them that there was a difference in the level of the roof of the house and that of the adjoining one.
They consulted engineers who reported in 1990 that there had been movement over a long period of time and that active movement was now occurring again. The report was sent to the plaintiffs’ insurers, together with the 1983 report, but the insurers refused to pay the whole of the cost of the work required to deal with the defects. The loss adjusters’ report was made available to the plaintiffs in April 1991, who brought proceedings against the original valuers in February 1994. As a preliminary point the issue was whether the action was statute-barred. A first instance decision was given in the defendants’ favour. The plaintiffs appealed.
Held The appeal was dismissed.
1. Section 14(A), subsection 3 of the Limitation Act 1980 provided that an action could not be brought either after six years from the date on which the cause of action accrued or three years from the starting date which “is the earliest date on which the plaintiff … had the … knowledge required for bringing an action”.
2. At first instance, the judge accepted the argument for the defendants that when the builder came to look at the roof in 1990, he told them that there was something wrong. He advised them to get a report from engineers and suggested that they had a claim against their insurance company. The report informed them that what was wrong was attributable both to the old subsidence and to recent subsidence.
3. The judge then went on to consider what a reasonable person would have done armed with that knowledge. The reluctant conclusion was that he would have sought advice, not only in relation to the insurance company, but also to the valuer because by then the plaintiffs were aware that something had happened — namely the recent further movement — which the valuer had specifically stated in the 1983 report was unlikely to happen.
4. The rules of the Limitation Act, the judge went on, could not be bent. A reasonable person would have taken advice as to where he could look for a remedy. He would not have just let the limitation period expire while pursuing one remedy, ie the insurers and only try to pursue the other, ie the valuers, if the first efforts did not succeed.
5. The reasoning of the first instance decision could not be faulted. The Court of Appeal dismissed the appeal.
Charles Feeny (instructed by Brighouse Jones & Co) appeared for the plaintiffs; Naomi Ellenbogen (instructed by Hammond Suddards, of Bradford) appeared for the defendant valuers.
