'The date when a cause of action accrues against a design professional is relevant for limitation purposes.' What does that mean? In order to avoid stale claims, the Limitation Act sets out time limits within which claimants should bring their claims to court. Unlike on the continent, the time limits here are not universally applicable. Instead, there is a complex array of time periods from three to six, to 12 to15 years.
Time limits are all very well, but when do they start to run?
The simple answer is that they run from the date when the claimant's cause of action accrued. But in construction cases there is no universal starting point. It can be when the contract was breached, when the claimant relied on the negligent advice, when the works were completed, when the claimant discovered they had been designed or constructed negligently, when the damage occurred or when the claimant discovered the damage.
These complexities are generally thought to be bad news for designers, who are open to claims both for breach of contract and for negligent advice and therefore have less chance of arguing that the claim is out of time. They are not assisted by a line of judicial thinking, developed in the 1980s, that whenever the design was carried out, built and inspected, be it for the early ground works or final roofing details, the designer was under a continuing duty to review the design, up to the date of practical completion.
Although this thinking obviated the need for the court to enquire precisely when the designer may have fallen into error, opting instead for practical completion as the date from which at least some of the time limits started to run, it did have a certain artificial air about it. Particularly so in large projects where allegations were made in respect of works that were designed, built and covered up in the early stages of the project. Even if the designer were under a continuing duty, how could he or she subsequently modify their design on the eve of practical completion in such circumstances?
This point was considered in New Islington and Hackney Housing Association v Pollard Thomas and Edwards (2001). In the case, the judge suggested that the duty was qualified and that an architect was not under a duty to review the design of, for example, foundations, unless there was some particular reason why it should. In the absence of such a reason, the judge rejected the idea that any breach of duty continued beyond the construction of the foundations.
The continuing duty to review was further undermined recently in Tesco Stores v Costain Construction (Judgment 2.7.03).The claimant's store, which was designed by architects, was built in 1989 and completed in 1990 by the defendant contractor. Later, in 2001, a fire broke out during alteration works and caused considerable damage. Tesco alleged that the spread of the fire was due to the absence of proper fire-stopping measures, which was attributed to the architect's negligent design, among other things. The architect argued that any negligence on its part occurred outside the relevant time limit and that Tesco was too late to claim against it.
Technology and Construction Court Judge Seymour QC agreed. He found that time started to run from the point at which the relevant design was completed or inspection made and did not continue beyond that point.He decided that architects do not owe a continuing duty to their clients to review their design simply so that any breach in respect of that design continues until completion of the structure. Only if something occurs that would bring to the attention of a reasonably competent architect the need to review its design does the duty continue.
He found the architect was also entitled to rely on the fact that its design was to be built by an experienced building contractor and it had no obligation to inspect work that had been covered up.
While this decision does nothing to simplify the relevant limitation periods, it does at least put back the time from which they run to a realistic starting point.