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SECOND HELPINGS

LEGAL

The courts like certainty and finality, writes Kim Franklin.

Various procedural rules have been devised to ensure that a claim includes all causes of action relied upon so that they can be dealt with together, once and for all. There is no magic in a cause of action; it is simply the facts that entitle one person to obtain a legal remedy against another. In an ideal world you would have facts that give rise to a breach of contract, in respect of which a claim is made, decided by the court and, if the claimant is lucky, damages are awarded.

But of course, the world of construction disputes is not an ideal one. In one case the employer claimed and recovered damages for breach of a contract to build a bungalow 'in a good and workmanlike manner'. Ten months later, realising that he may have been on to a good thing, he brought an identical claim, adding the words 'with proper materials' and recovered more money. The Court of Appeal overturned the second judgment on the grounds that the claimant was not entitled to have two shots at what was in essence the same claim.

The defendant architects in the recent case of Mantegazza v Neil Holland Architects Ltd (Judgment 11.05.06) similarly found themselves presented with two claims arising out of the same contract, for an extension to the claimants' home. Before the work was completed, a claim was brought against the architects for approving defective work, including the pointing of the brickwork.

The dispute was ultimately resolved when the claimants accepted £35,000, 'in full and final settlement of all claims made'.

Two years later the claimants discovered that the limestone mortar used for the extension was unsuitable and had led to erosion of parts of the building. The remedial costs were likely to run into six figures. They brought a second claim against the architects.

The architects applied to the court to strike out the new claim on the grounds that it was essentially a rehash of the old claim, which had been concluded with a settlement agreement. They argued that the settlement prevented the claimants from 'twice vexing' the court with the same problem and that, in any event, the problem ought to have been raised first time around.

The claimants were not entitled to a second bite at the cherry, they said.

The court rejected these arguments and allowed the claim to stand. The judge said that the settlement related only to 'all claims made' and not to potential, future claims. He further concluded that although both claims concerned the mortar, defective repointing and the use of an inappropriate mortar were entirely different and distinct allegations and not the same claim at all.

And the moral of this tale?

Claimants - don't rush to sue the team. See what defects manifest themselves within the limitation period. Defendants - use one of the lawyers' time-hallowed formulae to encompass both present and future claims when compromising early disputes.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com

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