City & General (Holborn) Ltd v Royal & Sun Alliance Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Wilson,Lord Justice Toulson |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] EWCA Civ 911 |
| Docket Number | Case No: A1/2009/1964 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2010 |
[2010] EWCA Civ 911
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
The Honourable Mr Justice Christopher Clarke
Before: The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Wilson
and
The Right Honourable Lord Justice Toulson
Case No: A1/2009/1964
Mr Nicholas Baatz QC(instructed by Clyde & Co LLP) for the Appellant
Mr Roger Stewart QC & Mr Jeffery Terry (instructed by DWF LLP) for the Respondent
Hearing dates : 23 rd July 2010
Lord Justice Longmore:
Introduction
This is an appeal from a judgment of Christopher Clarke J sitting in the Technology and Construction Court setting aside a without notice order made by Ramsey J extending time for the service of a claim form. The claim form was issued on 16 th January 2009 but not served within the required 4 month period which expired on 17 th May 2009. An application to extend the time for service was made shortly before expiry and on 1 st June Ramsey J extended the time for serving the claim form to 16 th June and the claim form (together with Particulars of Claim) was served on 15 th June. On 10 th July the defendants applied to set aside the service of the claim form; that application was heard on 23rd July and on 18 th August Christopher Clarke J handed down his judgment setting aside the without notice order of Ramsey J. On 21 st December he refused permission to appeal as did the single Lord Justice on the papers. But after an oral hearing, permission to appeal was granted on 23 rd February 2010.
The claim is brought by City & General (Holborn) Ltd (“C & G”) the developers of the former Patent Office at Southampton Buildings against both their contractors' all risks and their property damage insurers in respect of damage allegedly suffered as a result of:—
i) flooding or water ingress in the basement first discovered on 15 th April 2002;
ii) the collapse of a crane on an adjoining site on 18 th January 2003;
iii) the infestation of water systems with a bacteria known as pseudomonas discovered on 17 th May 2004.
It will be seen at once that C & G's claims against their insurers have potential limitation problems:—
i) any cause of action in respect of flooding or water ingress damage would be likely to have arisen in April 2002 and be time-barred by the time proceedings were issued on 16 th January 2009;
ii) any cause of action in respect of damage caused by the collapse on 18 th January 2003 was still (just) extant on 16 th January 2009; but if the claim form was not served within the requisite four month period, it was time-barred at the time when the application to extend the time for service of the claim form was made. The result of granting any extension of time for serving the claim form would mean that the defendants would have to face a claim which became time-barred during the period within which the claim form should have been served;
iii) if the pseudomonas infestation arose at the time of the flooding/water ingress or the time of the crane collapse, any such claim would face similar problems to those outlined above. If it constituted a separate cause of action or if time ran from the discovery of the infestation, the claim would become time-barred on 17 th May 2010.
It was in these circumstances that the judge set aside the without notice order extending the time for service of the claim form. He held that there was no good reason for failing to serve the claim form and, further, that it was arguable that, if an extension was granted, the insurers would be deprived of a time-bar defence. Arguments about time-bar should, he said, be decided in a fresh action.
The Appeal
That was a decision reached by the judge in the exercise of his discretion and it would normally be impossible to attack the exercise of that discretion in this court. Mr Baatz QC for C & G has, however, been given permission to advance three grounds of appeal:—
i) that the judge should have considered each of the three claims separately, come to a separate conclusion about time-bar in respect of each claim and to the extent that it was clear (or perhaps arguable) that only part of a claim was time-barred, allowed that part to continue;
ii) that the judge held in terms (paragraphs 37 and 40 of the judgment) that the flooding/water ingress claim was time-barred; that was wrong because a new cause of action arose every time more water entered the construction site which it continued to do, causing fresh damage, up till the time when the problem was fixed in September 2004; it was important that the court set aside that wrong decision because the insurers had already said that they would defend any new proceedings not merely on the grounds of time-bar but also on the basis that the judge had decided the claim was time-barred and that C & G would be (issue) estopped from arguing otherwise;
iii) that, in any event, by a letter of 27 th March 2007 in which the insurers had made offers in relation to the water ingress and the crane collapse, they had acknowledged those claims so that the limitation period started again at the date of acknowledgment, pursuant to section 29(5)(a) of the Limitation Act 1980. That provides:—
“(5) Subject to subsection (6) below, where any right of action has accrued to recover –
(a) any debt or other liquidated pecuniary claim; or
(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;
and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of...
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