Limitation in Property Damage Cases

How long do I have before I must bring my action?

The Limitation Act 1980 gives a person whose property has been damaged 6 years to sue the culprit. But 6 years from when? From when the poor workmanship was carried out, or from when the damage occurred? Or, perhaps from when the damage was discovered?

This summary is for the benefit of the property owner.

The Act creates two time limitation periods and a provision for 'Late Knowledge':

1. Limitation in Contract: when suing in contract time runs from the date of the breach - NOT the date of the damage.

2. limitation in Negligence: when suing in negligence time runs from the date of damage.

These are the points to remember.

Suing for Breach of Contract: In contract law, the cause of action begins with the breach not the damage.

Example: in 2010 Alf engages Bert Ltd to treat the roof timbers of his house with anti-rot treatment. The contract specifies 4 coats of 'Never-Rot', a premium brand. Bert decides to cut corners and applies 3 coats of 'Not-So-Bad', a cheaper treatment. ten years later in 2020, extensive rot is discovered. Alf's expert Len says in his report that 'Not-So-Bad' is rubbish, that the extensive rot probably began in 2015 and that if the correct stuff had been used the roof would not have rotted. Alf has a good case in contract. But, since the case is in contract, the 6 year period runs from when the work was done - 2010 - and not from a later date. So it is too late to sue in contract.

Suing in Negligence: A poor job is not necessarily a negligent job. Using the inferior anti-rot treatment was plainly in breach of contract, but it is not negligent. To be negligent Bert would have to do something which no reasonably competent builder would have done. Imagine Bert instead of using the inferior treatment simply paints the timbers with dirty water. This is more than mere breach of contract, this is negligence: no reasonably competent builder would do this. So Alf can sue Bert in negligence. And, since he is suing in negligence his 6 years begins with the date of damage! And since Len says the damage probably began in 2015, Alf has until 2021 to get his proceedings issued.

Late Knowledge

S.14A of the Limitation Act is the claimant’s last chance. It allows a claim in negligence (not in contract) to be brought after the 6-year primary period has elapsed only if the claimant can satisfy its requirements:

The claimant only gained ‘the knowledge required for bringing an action’ after the right of action had accrued.
‘The knowledge required’ is to be judged objectively : it means knowledge of the facts .. that would lead a reasonable person to consider .. instituting proceedings.

This knowledge will include anything reasonably discoverable: The language used is ‘from facts observable or ascertainable’.

And what is reasonably discoverable will include ‘facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek’.

Where a claimant satisfies S14A he has 3 years from his date of knowledge.

Longstop: section 14B imposes a cut-off date of 15 years from the date the cause of action accrued. Regardless of when C obtained his ‘late knowledge’ of the material facts.

Late Knowledge under 14A is not an 'Add on'

Go back to Alf’s case:

- The rot was there from 2015. So damage occurred in 2015.

- Therefore the 6-year limitation period in negligence gives Alf until 2021 to sue.

- Imagine Alf fails to issue proceedings. Can he use S.14A to add 3 years to his limitation period?

Answer: NO. He already had knowledge of the damage within the 6-year period. His failure to issue proceedings in time was not due to his ignorance of a relevant fact. He is out of time.

Let us hope he had already instructed solicitors...