Anns v Merton London Borough Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Lord Diplock,Lord Simon of Glaisdale,Lord Salmon,Lord Russell of Killowen
Judgment Date12 May 1977

[1977] UKHL J0512-1

House of Lords

Lord Wilberforce

Lord Diplock

Lord Simon of Glaisdale

Lord Salmon

Lord Russell of Killowen

Anns and Others
(Respondents)
and
London Borough of Merton
(Appellants)

Upon Report from the Appellate Committee, to whom was referred the Cause Anns and Others against London Borough of Merton, That the Committee had heard Counsel, as well on Thursday the 3d, as on Monday the 7th, Tuesday the 8th, Wednesday the 9th, Thursday the 10th, Monday the 14th, Tuesday the 15th, Wednesday the 16th and Thursday the 17th, days of February last, upon the Petition and Appeal of the London Borough of Merton of The Town Hall, The Broadway, Wimbledon, London, S.W.19, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 10th of March 1976, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal or such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of Michael Ralph Anns, Kenneth Rodney Blackwell, Alfred Colston, Brian Thomas Davenport, Dermott O'Shea, Florence Mary O'Shea, Anthony Charles Phillips and William Patrick Walker lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 10th day of March 1976, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Wilberforce

My Lords,

1

This appeal requires a decision on two important points of principle as to the liability of local authorities for defects in dwellings constructed by builders in their area namely:

1. Whether a local authority is under any duty of care towards owners or occupiers of any such houses as regards inspection during the building process.

2. What period of limitation applies to claims by such owners or occupiers against the local authorities.

2

Before these questions are discussed it is necessary to explain at some tedious length the procedural background which unfortunately complicates the decision-making task.

3

Procedural issues

4

The present actions were begun on 21st February 1972. The plaintiffs are lessees under long leases of seven flats or maisonettes in a two storey block at 91, Devonshire Road, Wimbledon. The owners of the block and also the builders were the first defendants, Walcroft Property Company Ltd.: after its completion in 1962 they granted long leases of the maisonettes: the fifth and sixth plaintiffs (O'Shea) are original lessees, having acquired their lease in 1962; the other plaintiffs acquired their leases by assignment at dales in 1967 and 1968.

5

The local authority at the time of construction was the Mitcham Borough Council: on 9th February 1962 they passed building plans for the block, which were deposited under the byelaws. Later this council was superseded by the London Borough of Merton, the second defendants, which took over their duties and liabilities.

6

In February 1970 structural movements began to occur resulting in cracks in the walls, sloping of floors, etc. The plaintiffs' case is that these were due to the block being built on inadequate foundations, there being a depth of 2' 6? only instead of 3' 0? or deeper as shown on the deposited plans. On 21st February 1972 writs were issued against both defendants—the separate proceedings were later consolidated. As against the first defendants (the builders) the claims were for damages for breach of contract and also for breach of the implied undertaking under section 6 of the Housing Act 1957. As against the council the claims were for damages for negligence by their servants or agents in approving the foundations upon which the block was erected even though (sic) they had not been taken down to a sufficient depth and/or in failing to inspect the said foundations. This claim was expressed as follows:

"5. Further or in the alternative the said damage has been caused by the negligence of the Second Defandants in allowing the First Defendants to construct the said dwelling house upon foundations which were only 2' 6? deep instead of 3 feet or deeper as required by the said plans, alternatively of failing to carry out the necessary inspections sufficiently carefully or at all, as a result of which the said structural movement occurred."

7

As particulars given under this paragraph the plaintiffs stated:

"Under the Building Byelaws the Second Defendants were under a duty to ensure that the building was constructed in accordance with the plans, and the building should have been inspected inter alia before the foundations were covered.

The Plaintiff's case is that the Second Defendants should have carried out such inspections as would have revealed the defective condition of the said foundations, that if any inspection was made then it was carried out negligently, and that if no inspection was made that in itself was negligent."

8

Both the allegations in the statement of claim and those in the particulars were to some extent misconceived as I shall show later.

9

The first defendants did not put in any defence but undertook to carry out certain work. They did not appear in the hearings to be mentioned or on this appeal.

10

The second defendants filed a defence on 8th February 1973 and on 9th October 1974 the consolidated actions were transferred to an official referee. On 16th October 1975 an order was made,

"that the issue between the Plaintiffs and the 2nd Defendants whether claim is statute barred be tried on 24th October 1975".

11

On 24th October 1975 this issue was tried by His Honour Judge Edgar Fay, Q.C., who decided that the claims were statute barred. In a written judgment His Honour held that time began to run from the date of the first conveyance of each of the properties concerned: the latest of these dates was 5th November 1965, which was more than six years before the date of the writ. In so deciding the judge (correctly) followed an observation ( obiter) by Lord Denning, M.R. in Dutton v. Bognor Regis U.D.C. [1972] 1 Q.B. 373, 376.

12

The plaintiffs appealed to the Court of Appeal from this decision on 17 February 1976. Before the appeal came on, namely on 10 February 1976 the Court of Appeal (Lord Denning, M.R., Roskill and Geoffrey Lane, L.JJ.) in Sparham-Souter v. Town and Country Developments (Essex) Ltd. [1976] 1 Q.B. 858 decided that the cause of action did not accrue before a person capable of suing discovered, or ought to have discovered, the damage. Lord Denning, M.R. in his judgment expressly disavowed his earlier dictum in Dutton's case. On this view of the matter none of the present plaintiffs' claims would be statute barred. On the appeals in the present case coming before the Court of Appeal on 1st March 1976, that court, without further argument, following Sparham-Souter's case, allowed the plaintiffs' appeal and gave leave to appeal to this House. That appeal would, of course, have been confined to a preliminary issue of limitation.

13

However before the appeal to this House came on, the second defendants (the council) presented a petition, asking for leave to argue the question whether the council was under any duty of care to the plaintiffs at all.

14

This question had not been considered by Judge Fay, or by the Court of Appeal, because it was thought, rightly in my opinion, that it was concluded by Dutton's case. Thus the council wished to challenge the correctness of the latter decision. In that case the defendant Council of Boenor Regis was held liable for damages in negligence (viz., negligent inspection by one of its officers), consisting of a breach of a duty at common law to take reasonable care to see that the byelaws were complied with. On 21st October 1976 this House acceded to the petition. The appellants thus have leave to argue that in the circumstances the council owed no duty of care to the plaintiffs.

15

This being a preliminary point of law, as was the argument on limitation, it has to be decided on the assumption that the facts are as pleaded. There is some difference between those facts and those on which Dutton's case was based, and in the present case the plaintiffs rely not only upon negligent inspection, but, in the alternative, upon a failure to make any inspections.

16

In these circumstances I take the questions in this appeal to be:

1. Whether the defendant council was under:

( a) a duty of care to the plaintiffs to carry out an inspection of the foundations (which did not arise in Dutton's case

( b) a duty, if any inspection was made, to take reasonable care to see that the byclaws were complied with (as held in Dutton's case).

( c) any other duty including a duty to ensure that the building was constructed in accordance with the plans, or not to allow the builder to construct the dwelling house upon foundations which were only 2 ft. 6 in. deep instead of 3 ft. or deeper (as pleaded).

2. If the defendant council was under any such duty as alleged, and committed a breach of it, resulting in damage, at what date the cause of action of the plaintiffs arose for the purposes of the Limitation Act 1939. No question arises directly at this stage as to the damages which the plaintiffs can recover and no doubt there will be issues...

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