Action for damp problem is statute barred

LAW REPORT 12 October 1995

Wilson v Le Fevre Wood & Royle; Court of Appeal (Lord Justice Evans, Lord Justice Morritt and Lord Justice Hutchison); 1 September 1995

Although consulting a solicitor was not enough to fix a plaintiff with acquiring the relevant knowledge for bringing an action for damages, on the facts the plaintiff had the requisite knowledge before he consulted solicitors and acquired the knowledge more than three years before his writ was issued.

The Court of Appeal allowed the defendant's appeal against Judge Kennedy QC's decision on a preliminary issue that the plaintiff's claim in negligence against the defendant was not statute barred.

In 1981 the plaintiff's bungalow was damaged and, through insurers, the defendant firm of architects and surveyors undertook the supervision of the repair work. The plaintiff resumed occupation in early 1983 and suffered serious problems with damp. The plaintiff believed that defects in the way the house had been rebuilt gave rise to severe rising damp and complained to the defendant. The defendant informed him that the problem was one of condensation and the property needed time to dry out.

In April 1987 the plaintiff made a renewed complaint which the defendant declined to deal with. In the spring of 1987 he consulted the citizens' advice bureau and in May 1987 he consulted Heringtons, solicitors, who issued a writ against the defendant on 16 July 1990. The issue was whether the plaintiff first had the knowledge required for bringing an action for damages after 16 July 1987, when expert advice was received, so as to avoid the action from being statute barred under section 14A of the Limitation Act 1980.

The judge found that in 1983 the plaintiff accepted the defendant's professional opinion of the cause of the damp and the plaintiff first had knowledge that the damp was attributable to the act or omission of the defendant after 16 July 1987.

Paul Parker (Reynolds Porter Chamberlain) for the defendant; Richard Deighton (Cooper Carter Claremont) for the plaintiff.

Lord Justice Hutchison said that the alleged negligence occurred, at latest, in early 1983. The critical question was whether the plaintiff first had "the knowledge required for bringing an action for damages" before or after July 1987: section 14(A)(5). Only by bringing himself within that provision could the plaintiff avoid the consequences of the ordinary rule that actions for negligence not involving personal injury or death must be brought within six years of the accrual of the cause of action.

It was for the plaintiff to prove a date within three years of the commencement of proceedings when he acquired the relevant knowledge. On the basis of the plaintiff's pleading, the plaintiff acquired the relevant knowledge on the basis of advice in September 1987 but it was now known to have been given in May 1987.

Merely to show that solicitors had been consulted was not enough to fix the plaintiff with constructive knowledge: there must be an allowance of time for the person consulted to get such information as he needed to give advice.

Even accepting that consulting a solicitor was not conclusive evidence against a plaintiff on the issue of when the relevant knowledge of attributability had been acquired, on the facts it was not open to the judge to find that the plaintiff did not have the requisite knowedge in May 1987 when he consulted solicitors.

There was evidence from which it was clear that the plaintiff had the requisite knowledge after April 1987 when they finally rejected the defendant's assertions about condensation. From an early stage, in 1983, the plaintiff knew of the facts which led him to the conviction that the damp problems was attributable to the defendant's acts or omissions. Even if he was willing to give the defendant a chance to prove the correctness of its diagnosis, in April 1987 he reverted to his former belief and took advice.

The writ was not issued within three years of the date when the plaintiff first acquired the requisite knowledge. It was open to serious doubt whether in a case such as the present it was wise to have a preliminary issue. There should always be a careful and rigorous analysis of the possible advantage and disadvantages, particularly in regard to costs, of such a course.

Lord Justice Morritt and Lord Justice Evans agreed.

Ying Hui Tan, Barrister