Eagle v Redlime Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eder |
| Judgment Date | 04 April 2011 |
| Neutral Citation | [2011] EWHC 838 (QB) |
| Docket Number | Case No: HQ09X04799 |
| Court | Queen's Bench Division |
| Date | 04 April 2011 |
[2011] EWHC 838 (QB)
Before: The Honourable Mr Justice Eder
Case No: HQ09X04799
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr David Flood (instructed by Darbys Oxford) for the Claimant
Mr Oliver Ticciati (instructed by Keoghs) for the Defendant
Hearing dates: 14, 15 March 2011
Mr Justice Eder:
Introduction
In these proceedings, the claimant (Mr Clinton Eagle) claims damages in tort against the defendant ("Redlime") arising out of construction work done by Redlime in 2000 at Mr Eagle's property known as Hillcrest, Pear Tree Hill, Woodstock Road, Oxford (the "property"). The proceedings were commenced by issuance of a Claim Form dated 29 October 2009.
Redlime denies liability but says that, in any event, the claim is statute barred. (It is common ground that any claim by Mr Eagle in contract is statute barred.) In particular, Redlime says that Mr Eagle had the actual or constructive knowledge required for bringing an action for damages and a right to bring such an action within the meaning of s14A of the Limitation Act 1980 (the "Act") by, at the latest, 29 October 2006 i.e. more than 3 years before these proceedings were commenced.
Mr Eagle's case is that he did not have the relevant knowledge until 16 November 2006 and that accordingly his claim has been brought within the 3 year period allowed by section 14A of the Act.
By order of HHJ Seymour QC dated 1 March 2011, the question whether Mr Eagle's claim is statute barred was ordered to be tried as a preliminary issue. That is the issue which is the subject matter of this judgment. I set out below a summary of the relevant facts. That summary is based upon the contemporaneous documents and the evidence of Mr Eagle who was a witness at the hearing of this preliminary issue.
Background Facts
In about 1998, Mr Eagle and his wife purchased the property with the specific idea to start a dog kennelling business (now known as Lakeside Kennels) for which they would need to build a kennel block. At that time —and indeed at all material times —Mr Eagle had no specialist knowledge of or any qualifications in building and had not undergone any training. His work had always been driving, very basic labouring and assisting other skilled craftsmen.
Mr Eagle instructed a surveyor, Mr Bowyer (now deceased), to help him get planning permission. He prepared a number of drawings to accompany the application for planning permission. Once planning permission had been obtained, Mr Eagle sought quotes from a number of companies to carry out the construction work. In the event, Redlime submitted two quotes. The first quote was dated 6 October 1999. Following discussions, there was then a second and slightly amended quote dated 7 January 2000 which Mr Eagle accepted shortly thereafter.
The broad scope of the work was to construct a concrete base (including drainage work and a silage tank) for dog kennels at the property. That work was carried out by Redlime between January and March 2000. Mr Eagle subsequently had the superstructure constructed in two phases by a third party contractor.
Mr Eagle's case is that Redlime held itself out as a civil engineering contractor with knowledge and experience in ground works and foundations. So far as the work carried out by Redlime is concerned, Mr Eagle says that the contract was to construct the base as per surveyor's drawings (the "drawings") that included a vertical section showing proposed foundations. Redlime denies that it was obliged to construct to the drawings. Rather, Redlime says that it was only obliged to construct according to the contents of a hand written sketch provided by Mr Eagle. Mr Eagle says that the sketch was provided to Redlime at its request simply to indicate the position of the drains in the base and that was all. In essence, it is Mr Eagle's case that Redlime failed to construct the concrete base in accordance with the drawings and did not place any foundations under the base. Moreover, Mr Eagle says that Redlime recommended this course of action and that he had no input into the design or construction of the base. Save as set out below, I make no findings with regard to any of the matters referred to in this paragraph; but, for present purposes, I proceed on the basis that Mr Eagle has, at least, an arguable case that the work done by Redlime was inadequate and in breach of a duty of care to Mr Eagle.
Mr Eagle lived in a bungalow on the property when work commenced in January 2000. When the ground works actually started he could not see any evidence of Redlime digging foundations. According to Mr Bowyer's plans, Mr Eagle understood that the "typical section" comprised of a concrete floor built on four concrete footings which would require four trenches to be dug to accommodate them. Mr Eagle asked a friend of his, Lawrence Leahy, whom he had initially wanted to build the kennels about what Redlime was doing. According to Mr Eagle's written statement, Mr Leahy told Mr Eagle that what Redlime was doing was completely wrong and that it was not following the plans (meaning Mr Bowyer's plans). Mr Eagle was cross-examined with regard to this part of his statement. His evidence, which I accept, was that when Mr Leahy told him that what Redlime was doing was completely wrong, he (Mr Eagle) understood this to mean no more than that the work being done by Redlime was not in accordance with the plans. When Mr Eagle raised this with Mr Harmsworth of Redlime, Mr Harmsworth told Mr Eagle: "that's the old – fashioned way of doing it, it's more expensive, this is the modern way of doing it, we've got massive contracts down Langford Lane and this is what we are doing down there." Mr Harmsworth explained to Mr Eagle that the "modern method" was a floating slab. Mr Eagle understood Mr Harmsworth to be saying that the "modern method" meant creating a concrete base which was effectively a raft. Mr Eagle accepted Mr Harmsworth's advice.
Once the ground work was finished by Redlime, Mr Eagle proceeded to get other contractors in to build the actual kennel blocks on top of the concrete slab constructed by Redlime. In about 2004, some further rendering work was done on the walls by a local plasterer, Richard Jobs. Mr Jobs did some further work in 2005. Mr Eagle's evidence was unclear as to the timing, nature and scope of this work. In his second statement (which I accept) he stated that this work had nothing to do with the kennel stocks but involved the rendering of a perimeter wall (both sides) of the property.
Sometime thereafter, Mr Eagle started to notice some small cracks in the render of the walls. These appeared to be just small cracks in the rendering inside and out. They were around windows and down the walls. At the time, Mr Eagle thought that this was just normal settlement in a new building which was to be expected and so all he did was to get Mr Jobs (who had done the original rendering) to come in and repair the cracks by hacking off and making good using Tetrion filler. Again, it was unclear from Mr Eagle's evidence as to when these cracks were first noticed and when this work was carried out although this does not seem to be crucial. Doing the best I can on the evidence before me, it seems to me that this probably occurred (at the latest) sometime in early 2006.
In about the early part of 2006, Mr Eagle then also noticed that what he referred to as the "Aco channel" (which formed part of the drainage system) was sinking and separating from the slab floor. Mr Eagle thought at the time that this was due to Redlime simply placing the Aco channels on a mix of ballast (stones) and cement and then pouring concrete into the void using the edge of the Aco channel as a shutter rather than creating a channel in the concrete for the Aco drain. In particular, he thought what had happened was that the original ballast and cement mix had become wet and water had caused it to compact and cause movement of the Aco channels. As a result, all he did was put expanding foam in the crack between the Aco channel and the floor. His evidence, which I accept, was that had he thought the problem was more widespread than simply the sinking of the Aco channel, he would not have wasted his time making this repair.
About six months later i.e. sometime in the late summer of 2006, Mr Eagle noticed that the render had re-cracked. This concerned Mr Eagle a bit more because he thought he could not keep paying for the plasterer to come and to make good so there must be something wrong. In addition, the gap along the Aco drain which he had filled had reappeared. He still thought that it might be that the Aco channel was sinking because Redlime had bedded that on dry mix and perhaps there might be some water ingress. The gap by the Aco channel concerned him more than the re-cracking in the render because if the Aco channel was sinking into the dry mix, then the levels on that channel would be wrong; this would prevent liquid from moving along it into the drains; and, as a result, there would be a back flow of dog urine.
In about September 2006, Mr Eagle rang Mr Harmsworth and told him that there was cracking and that he wanted him to come and to have a look. Mr Harmsworth made a couple of appointments to come out but failed to attend either of them. Around the same time Mr Eagle also contacted a firm of solicitors, Darbys. He also contacted his own insurers but they told him on the telephone that he was not covered for the settlement of the Aco channel caused by water ingress onto the dry mix on which it had been placed. Mr Eagle continued to try to contact Mr Harmsworth. He eventually came out in September 2006 to have a look at the kennels. Mr Eagle could not remember much about this site...
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