The law has its aberrations. Some would say that Anns v Merton (1978) was one, deciding as it did that the cost of repairing defects was recoverable in actions based in tort.
Over the following decade or so, thousands of claims were brought by owners of defective buildings against those involved in their design and construction, irrespective of any contractual relationship between them. Eventually, in Murphy v Brentwood (1991), the House of Lords, decided that Anns v Merton had been wrongly decided and that if you wanted to recover the cost of repairing latent defects, you needed a contract with the wrongdoer.
Similarly in Northern Regional Health Authority v Crouch (l984), the Court of Appeal decided that if your dispute concerned the correctness or otherwise of an architect's certificate, and the certificate had been issued under a building contract with an arbitration clause, the court had no power to override the certificate - only an arbitrator could do so. For 15 years those seeking to challenge architects' decisions were constrained to do so in arbitration, like it or not.
Ultimately, the House of Lords decided, in Beaufort Developments v Gilbert Ash (1999), that this could not be right. Now parties to the JCT standard form can opt for litigation, should they want to, unconstrained by the vagaries of Crouch . These decisions may have been aberrations but they had profound and long-lasting consequences for the industry.
The House of Lords has recently righted another aberration and this time cured a shorter-lived hiccup in the development of the law. The involuntary spasm was Brocklesby v Armitage & Guest decided last year; the cure, the case of Cave v Robinson Jarvis & Rolf (judgment 25.4.02).
The point in issue related to the time limits for bringing negligence claims.Limitation of actions - that is, the imposition of a time limit within which to bring a claim - is governed by statute law. The underlying policy is to spare a defendant the injustice of facing a stale claim.
It is in the public interest that a good cause of action should be pursued promptly. But the claimant needs to know that they have a claim and it would be unfair if their action was timebarred before they even knew about it.
Consequently, section 32 of the Limitation Act provides that time does not start to run if the claimant's cause of action has been deliberately concealed by the defendant. The rationale is that if the defendant is not sued earlier, they have only themself to blame.
In Brocklesby , the Court of Appeal took this common-sense approach one stage further and decided that a breach of duty, such as a negligent act, amounted to an act of deliberate concealment, even if, and here is the scary bit, the defendant did not know at the time that it was wrong.
Instead it was sufficient that the act was deliberate in the sense of being intentional, and that it amounted to a breach whether or not the actor appreciated the consequences.
Thus, those involved in giving advice in circumstances where it may be some time before it is discovered that their advice is wrong - in the design of a building, for example - provided they gave the advice deliberately, would have no protection against stale claims. They could be sued following the discovery that they were negligent, however long after the event.
In Cave v Robinson , the court decided that there is no rational justification for depriving a defendant of a limitation defence where neither the original wrongdoing nor the failure to disclose it to the claimant was deliberate.
Instead, section 32 should only apply when defendants take deliberate steps to conceal their breaches after they become aware of them, or where they are guilty of deliberate wrongdoing, and conceal it in circumstances where it is unlikely to be discovered for some time. It does not deprive a defendant of a limitation defence against a charge of negligence, where the defendant is unaware of a failure to take proper care.
Professionals can breath a sign of relief that the Brocklesby hiccup received a prompt dose of cold water.