This is the limit

The second defendants, the structural engineers, sought to have the claim dismissed in the ground that its limitation defence was bound to succeed. The claimants decided to extend and refurbish their house. They engaged the defendants, who were architects, structural engineers and waterproofing contractors respectively between 2000 and 2002. Part of the refurbishment involved the construction of a large basement room, the so called Garden Room. The claimants pleaded that they had engaged the engineers to provide structural advice about the construction of this room, so that it would be suitable for Building Regulation approval and would also be watertight.

Construction was completed in 2001, but the Garden Room filled up with so much water that it had to be pumped out. The architect refused to certify the works until the basement was leak free. The contractor, Concrete & Clay kept plugging the holes, but without success. The architect wrote to the engineers expressing the view that at the joint between the kicker upstand and the walls. The architect requested the engineers to produce a report on the problem. The engineers’ report blamed the water ingress on the movement of the wall shutters during the pour, combined with poorly aligned hydrophilic sealant.

Sika was called in and produced a report. They recommended that the entire basement be rendered with Sika 1 Structural Tanking System and that additional repairs/joint repairs might be required. On the architect’s recommendation, the claimants terminated Concrete & Clay’s contract. The claimants said that, at the architect’s invitation, Aquarend had inspected the Garden Room and recommended the use of a waterproof internal render including “combiflex” jointing over day joints in the floor and upstands, and that both Aquarend and the architect had told them that this would be a lasting solution to the problem. These works were completed in September 2004, and the claimants were given a 10-year guarantee. However, between 2002 and 2008, damp spots appeared on the ceiling.. By the summer of 2008, water started to accumulate under the flooring in the Garden Room. Floor coverings began to become sodden and mouldy and moisture started creeping up the walls. The Garden Room had to be cleared because of standing water.

The claimants commenced proceedings on 26 July 2010 and their Particulars of Claim was served on 23 November 2010. They alleged negligence against the architect and engineers in a number of respects, and claimed damages of over £900,000.

The engineers pleaded a limitation defence, arguing that the claimants were not entitled to rely upon s.14A of the Limitation Act 1980 to extend the limitation period to the 26 July 2010. The engineers applied for summary judgment on the basis that the claims in both contract and tort were statute-barred. The engineers submitted that that any claim in contract runs from the date of the relevant breaches which must all have occurred no later than 2002, i.e. eight years before the issue of proceedings. Any claim in tort should run from the date when damage first occurred which was between late 2001 and about March 2002 when serious flooding occurred. For the purposes of section 14A, the engineers argued that more than enough had occurred and was known about by the claimants in 2002 to set the three-year time period allowed by that section to start running.
 

The claimants’ complaints about the engineers’ breach of duty related to alleged failures which had occurred up to the supposed date of completion. For example, the complaint that the engineers had failed to specify adequate reinforcement must have been at design stage or at latest during construction of the reinforced concrete work by Concrete & Clay. The one or two complaints which could possibly relate to the post construction work were that the engineers had been careless in advising that the defective work could be remedied by render work and the failure to advise that the only solution was to remove the concrete work and have it done again properly. These omissions must have happened after the serious flooding first happened in December 2001 to March 2002. The problem was that pleaded facts did not suggest that the engineers had actually advised on the remedial solution. Whilst the engineers had been asked to report and had done so, Sika had been brought in to advise. It was unclear whether the engineers had been called in to advise after Sika’s report or had played any part in Sika’s involvement.

On the facts, the judge was satisfied that the claimants had had the requisite knowledge to bring the action in 2002 at the very least in relation to the engineers’ allegedly poor inspection, and for their arguably culpable endorsement of the use of Sika rendering. The claimants had had sufficient knowledge to justify embarking on the preliminaries to the issue of a Claim, such as submitting a claim. There must have been more than mere suspicion, and they must have known enough for it to be reasonable to begin to investigate further.

Apart from the complaints that engineers had acted negligently in advising them to remedy the water penetration problems of late 2001 and early 2002 by way of internal render as opposed to replacing the defective concrete, which had a sufficiently arguable prospect of succeeding, subject to proof, the engineers’ limitation defence succeeded and they were granted summary judgment.

Renwick v Simon and Michael Brooks, William Attwell and Associates  and Aquarend Ltd.

[2011] EWHC 874 (TCC)
 

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