Ketteman v Hansel Properties Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE PARKER |
| Judgment Date | 25 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0725-3 |
| Docket Number | 84/0328 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 1984 |
[1984] EWCA Civ J0725-3
Lord Justice Lawton
Lord Justice Stephen Brown
Lord Justice Parker
84/0328
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE HAYMAN)
Royal Courts of Justice
MR. E. M. OGDEN Q.C. and MR. M. SMITH (instructed by Messrs. Hewitt Woollacott & Chown) appeared for the Third Defendants.
MR. J. A. D. OWEN Q.C. and MR. A. J. N. BRUNNER (instructed by Messrs. Barlow Lyde. & Gilbert) appeared for the Second Defendants.
MR. R. E. AULD Q.C. and MR. C. J. M. SYMONS (instructed by Messrs Herbert Smith & Co) appeared for the Plaintiffs.
These appeals are from judgments of His Honour Judge Hayman, sitting as a Deputy Official Referee, given on 18th January 1983 and 14th February 1983 whereby he adjudged, inter alia, that all the plaintiffs should have judgment against the first defendants; that the first, second and fifth plaintiffs should have judgment against the third defendants for varying sums, together with interest thereon; and that the claims of the third and fourth plaintiffs against the third defendants should be dismissed, as should be the claims of all the plaintiffs against the second defendants. The third defendants, who are architects, have appealed against that part of the judgment which was in favour of the first, second and fifth plaintiffs. The third and fourth plaintiffs have appealed against that part of the judgment which dismissed their claims against the third defendants. All the plaintiffs have appealed against that part of the judgment which dismissed their claims against the second defendants, who are the Mid-Sussex District Council. Both the plaintiffs and the second defendants have given notice that they seek to support such parts of the judgment as were in their favour on grounds additional to those given by the judge.
The Issues
The following were the main issues raised in these appeals:
(1) When a building has faulty foundations due to negligence, giving rise either to subsequent structural damage or the need to take remedial action to avoid such damage, when does the cause of action accrue?
(2) When a building has faulty foundations due to negligence, so that its value as a building is diminished, does a cause of action in tort arise and, if so, when?
(3) When after action brought a new party is added as a defendant, is the date of joinder the material date for deciding whether a claim is statute barred for the purposes of the Limitation Acts or is it the date of the issue of the writ?
(4) When, if a Local Authority negligently fails to ensure compliance with building regulations so that a building has faulty foundations causing subsequent structural damage, is damage proved by evidence of a potential danger to health or safety?
The Facts
The first defendants, who have taken no part in these appeals, from 1970 onwards began building houses on some land at Burgess Hill, Sussex. That land at all material times came within the jurisdiction of the second defendants. Between June 1973 and June 1975 the first defendants built some semi-detached four-bedroomed houses in Marle Avenue. Five, numbered 32, 34, 36, 38 and 42, were bought by the plaintiffs; 32, 34, 36 and 38 in the early part of 1975, 42 in November 1975 They all occupied their houses soon after purchase. The houses had been designed by the third defendants. The first defendants had laid the foundations in accordance with the third defendants' designs and plans, shortly before the following dates, which were those on which the second defendants inspected them:
| No. 32 | 27??3 |
| No. 34 | 27??3 |
| No. 36 | 9??4 |
| No. 38 | 9??4 |
| No. 42 | 4??5 |
The foundations of all five houses were faulty. They were too shallow; the in-filling was of the wrong kind; and they had been laid too near some trees. For the purposes of these appeals it was accepted that the third defendants had been negligent in siting the houses too near the trees and in the design of the foundations and that the second defendants had been negligent in failing to ensure that the first defendants complied with Regulation D3 of the Building Regulations 1972 ( S.I. 1972, No. 317) which prescribe standards for foundations.
The summer of 1976 in Burgess Hill was hot and dry. These conditions were likely to cause shrinking of ground under and around the foundations of houses. Between 11th August and 9th September 1976 cracks in the walls of the houses were noticed on the following dates:
| No. 32 | 14??6 |
| No. 34 | 11??6 |
| No. 36 | 11??6 |
| No. 38 | 3??6 |
| No. 42 | 9??6 |
The judge found that the cracks in the walls of Nos. 32, 34 and 42 had occurred not more than about a week before they were noticed. He said that he was unable to find when the cracks in the walls of Nos. 36 and 38 had occurred and that the third and fourth plaintiffs had not satisfied him that they had occurred on or after 30th July 1976, a date which he regarded as important for reasons which will be stated later in this judgment. The cracks in all the walls had been caused by the settling of the faulty foundations. Expert evidence given by a Dr. Weeks, on behalf of the plaintiffs, and accepted by the judge, establish that the houses were at risk from further growth of the roots of some of the trees and that underpinning would be necessary to safeguard the houses for the future. Whilst underpinning was being done the plaintiffs and their families would have to move out.
All the plaintiffs decided to sell their houses rather than incur the considerable expense and the inconvenience of underpinning. On sale they all sustained substantial losses of about ?5,000 each. Between the dates when the cracks occurred and the sales the plaintiffs sustained inconvenience, some discomfort and much worry; but there was no evidence of any deleterious effects upon their health or that of their families.
The Litigation
The plaintiffs decided to sue the first defendants. They issued their writ, endorsed with the statement of claim, on 27th May 1980. By their statement of claim they alleged breach of contract and negligence. Both were denied. On 28th April 1981 the first defendants issued a third party notice against the second defendants, asking for an indemnity or, alternatively, contribution. By their third party statement of claim the first defendants alleged that the second defendants had been in breach of duty to them and to each of the plaintiffs in approving plans which failed to comply with the Building Regulations 1972 and in failing to ensure that the foundations were properly laid. The third party denied these allegations. On 18th August 1981 they issued a fourth party notice against the architects. Their fourth party statement of claim alleged that the architects had been in breach of their duty to the first defendants and to each of the plaintiffs in failing to use all reasonable care and skill in designing and siting the houses and ensuring that the building works designed by them complied with the Building Regulations.
The plaintiffs' advisers appreciated that the three parties before the court were blaming each other for what had happened. Nevertheless, they decided not to add the third and fourth parties as defendants as they could have done. When the third and fourth parties were brought in, the plaintiffs had reason to think that the first defendants were sound financially. Later, they doubted whether they were. This was in June 1982. They decided to apply to the court for leave to join the third and fourth parties as defendants. They did not anticipate any opposition to their application because, as the law was then understood to be following the judgment of this court in Sparham-Souter and another v. Town & Country Developments (Essex) Limited and another (1976) Q.B. 858, the plaintiffs' causes of action did not accrue until the damage caused by the third and fourth parties' negligence first manifested itself, and the persons who then had interests in the houses first discovered it, or should with reasonable diligence have discovered it. It followed that all the claims were probably within the periods of limitation. The third and fourth parties' experienced solicitors were of the same opinion. The plaintiffs issued a summons which was heard by His Honour Judge Sir William Stabb on 25th June 1982. The third and fourth parties were represented by counsel who, so we were told, raised no objection to the order being made, the relevant parts of which were in this form:
It is ordered that:
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(1) The first, third party and the fourth party be joined as defendants to the action.
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(2) A statement of claim to be served on the first, third party and the fourth party within 21 days.
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(3) Defences to be served 14 days thereafter.
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(7) The trial date for the 12 July to be vacated and that the date for the trial to be fixed for the 22 November 1982 with an estimated length of 10 days.
This order did not state explicitly that the specially endorsed writ should be amended. Counsel for the plaintiffs was instructed to settle an amended statement of claim. This he did. On or about 26th July 1982 a court clerk employed by the plaintiffs' solicitors went to the Central Office to get the amended specially endorsed writ stamped. A clerk there refused to apply the stamp on the ground that the order of 25th June 1982 did not provide for the writ endorsed with the statement of claim to be amended. It did so by...
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