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Redlime undertook building works on Mr. Eagle‘s property in 2000. Mr. Eagle commenced proceedings on 29 October 2009. As well as denying liability, Redlime alleged that the action was statute-barred because Mr. Eagle had the actual or constructive knowledge for bringing the action at the latest by 29 October 2006. Mr. Eagle argued that he did not have the constructive knowledge until November 2006, and that the action had been brought within the three-year period allowed by section 14A of the Limitation Act 1980.
Mr. Eagle wanted to build a kennel block at his house, and engaged Redlime to build the base for the kennels in accordance with drawings prepared by a surveyor, which included a vertical section which showed the proposed foundations. Mr. Eagle said that Redlime had held itself out to be a civil engineering contractor with knowledge and experience in ground works and foundations. Redlime denied that it had only been obliged to construct according to the contents of a hand written sketch provided by Mr. Eagle.
After Redlime had completed the ground work, Mr. Eagle engaged other contractors to build the kennels on top of Redlime’s concrete slab. In 2005, a local plasterer, Mr. Jobs, undertook some rendering, and shortly after, Mr. Eagle noticed small cracks in the rendering which he put down to normal settlement. In about the early 2006, Mr. Eagle then noticed that what he referred to as the “Aco channel” (which formed part of the drainage system) was sinking and separating from the slab floor. Mr. Eagle thought at the time that this was due to Redlime simply placing the Aco channels on a mix of ballast (stones) and cement and then pouring concrete into the void using the edge of the Aco channel as a shutter rather than creating a channel in the concrete for the Aco drain. Some time in the late summer of 2006, Mr. Eagle noticed that the render had re-cracked, and the gap along the Aco drain which he had filled had reappeared. Mr. Eagle rang Redlime’s Mr. Harmsworth who promised to come out, but failed to do so. Mr. Eagle also contacted solicitors, Darbys, and his insurers. The insurers informed him that he was not covered for the settlement of the Aco channel caused by water ingress onto the dry mix on which it had been placed.
Redlime blamed it on shrinkage of the clay soil due to the dry summers. They stated that Mr. Eagle had been satisfied with their work and they had had no input in the design of the slab, and both Mr. Eagle and building control had inspected the work. Mr. Eagle contacted a firm of engineers, who produced a report dated 16 November 2006. In this they blamed the cracking in the floor slab on the lack of tying between the edges of the floor slab with the central section, and said that the slab was too shallow. The report recommended underpinning.
The judge accepted Mr. Eagle’s evidence that this was the first time anyone had said to him that the problems were caused by the fact that the base had been constructed by Redlime in three sections and those sections had not been tied together. Up until that point he had merely suspected that a problem had been caused by water ingress penetrating and then compacting the dry mix upon which the Aco drain had been placed; and that he had not even suspected that the problem was any greater or more widespread than this. Mr. Eagle obtained a quote for the underpinning, and was told that it would be cheaper to knock the kennels down and start from scratch.
Mr. Eagle argued that he did not have the relevant constructive knowledge until 16 November 2006, and that the existence of the defects were only ascertainable with expert assistance. He submitted that he had taken all reasonable steps to take this expert advice and had obtained the engineer’s report within a month of him writing to Redlime. The critical question was when Mr. Eagle had “the knowledge required for bringing an action for damages in respect of the relevant damage”.
On the facts, the judge concluded that Mr. Eagle had had the necessary knowledge of the material facts about the damage in respect of which damages are claimed prior to (at the latest) 29 October 2006. By that stage, he certainly had known that there had been subsidence causing the Aco channels to sink and to separate from the concrete slab and that there had been cracking to the windows and walls. In the judge’s view, those were facts about the damage which would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment within the meaning of subsection (7). The judge accepted that he had not had knowledge of the full extent of the damage, but the authorities suggested that this was not necessary or relevant for the purposes of s14A(6)(a) and (7) provided that the damage of which the claimant has knowledge is “sufficiently serious” so as to satisfy the requirements of subsection (7).
Before prior to 29 October 2006, Mr. Eagle had thought that the damage was caused by something that Redlime had done wrong, although he wrongly believed that the cause of the problem with at least to sinking of the Aco channels was that Redlime had used a dry mix and) he only became aware of the real cause after he received the report from Hannah Reed. Before this date, Mr. Eagle had not had sufficient knowledge of the real cause of the damage; however, he had had sufficient knowledge that the damage was attributable to an act or omission of Redlime within the meaning of subsection 6(b) and 8(a) of the Act in the sense of being capable of being attributed to the work which they had carried out. This was confirmed by the fact that he had contacted Darbys for advice and had written to Redlime. With regret, the judge held that Mr. Eagle’s action was statute-barred.
Clinton Eagle v Redlime Ltd., [2011] EWHC 838 (QB)
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