Rath v C. S. Lawrence & Partners
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FARQUHARSON,LORD JUSTICE NICHOLLS,LORD JUSTICE SLADE |
| Judgment Date | 18 December 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1218-1 |
| Docket Number | 91/0176 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 1990 |
and
[1990] EWCA Civ J1218-1
Lord Justice Slade
Lord Justice Nicholls
and
Lord Justice Farquharson
91/0176
1990 R. No.580
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. BRIAN ESCOTT COX Q.C.,
Sitting as a Deputy Judge of the
Queen's Bench Division)
Royal Courts of Justice
MR. HUGH BENNETT Q.C. and MR. MALCOLM STITCHER (instructed by Messrs. Playford & Pope, Solicitors, Sheerness, Kent, ME12 2PJ) appeared on behalf of the Plaintiffs (Appellants).
MR. J.J. ACTON-DAVIS (instructed by Messrs. Cripps Harries Hall, Solicitors, Tunbridge Wells, Kent. TN1 2UP) appeared on behalf of the First Defendants.
MR. ROBIN HAY (instructed by Messrs. Christopher Harris & Co., Solicitors, Sheerness, Kent, ME12 5HR) appeared on behalf of the Second and Third Defendants (Respondents).
MR. N. PITT (instructed by Messrs. Jaques & Lewis, Solicitors, London, WC1Q 5HR) appeared on behalf of the Fourth and Fifth Defendants (Respondents).
The Third Party was neither present nor represented on the appeal.
In 1976 Mr. and Mrs. Howlett, the second and third defendants, purchased a bungalow called "Conifers" at Minster in the Isle of Sheppey. "Conifers" had been built some 16 years previously on a foundation of London clay. Over the years the bungalow had been affected by subsidence and at the end of 1980 work was carried out by the fourth and fifth defendants to stabilise the building. This work was done on the instructions and under the supervision of the third party, who had been appointed by the second and third defendants. The fourth and fifth defendants are acknowledged experts in this field.
Towards the end of 1982 the second and third defendants placed the bungalow on the market. A man called Baker was interested in purchasing it and instructed surveyors, Messrs. J.A. Warners, to inspect and report on the building. In their report dated 18th October 1982 the surveyors said that the property had suffered structural movement in the past and that there had been further signs of distress in the structure following repairs. In their opinion the risk of further movement was a real one. Accordingly, they recommended Mr. Baker not to proceed with the purchase at the agreed price of £34,000.
In November 1982 the plaintiffs came on the scene and were interested in purchasing the bungalow. In order to obtain a mortgage from Barclays Bank the plaintiffs instructed the first defendants C.S. Lawrence and Partners, also a firm of surveyors, to inspect and report on the property with a view to the plaintiffs' purchasing it for a sum of £32,500. In this report, dated 26th November 1982, the first defendant's representative, Mr. Bilecki, advised that there was no evidence on site of subsidence or flooding, though he found some evidence of minimal settlement. In his view the bungalow had been reasonably well maintained and defects were relatively minor. Mr. Bilecki made no reference to the works carried out in 1980 and advised that the price of £32,500, was reasonable in the market.
The plaintiffs were concerned about subsidence as they had previously had to withdraw from the purchase of another house on the same estate for that reason. At a meeting with the first defendant at the bungalow at the end of November or the beginning of December 1982 as they allege, the second plaintiff recounted their previous experience referring specifically to subsidence and works of underpinning. According to the plaintiffs the second defendant had replied: "You won't find anything like that here". Fortified, as they claim, by this assurance and Mr. Bilecki's report, the plaintiffs purchased the bungalow, completion taking place at the beginning of February 1983.
Thereafter, the defects in the bungalow speedily became apparent and the plaintiffs arranged for a different surveyor to inspect the premises in March 1983. Mr. Bilecki, on being advised of these developments, made a further inspection and concluded that cracks had appeared in the building which were not present at the time of his earlier inspection.
In the month of May 1983 the fourth defendant (who for the purpose of this judgment includes the fifth defendant) "issued" a guarantee to the second and third defendants in respect of the work it had undertaken in 1980. Apparently the account had not been paid until 1983. Presumably the second defendant was waiting until he received the money from the sale of the bungalow. The guarantee, which was dated November 1982, includes these words:
"We guarantee that the 'underpinned and guaranteed foudnations' will be stable for twenty years from the completion of the site works. If instability continues, the company, on production of this guarantee, will arrange to inspect the underpinning and repair it without charge, providing that the company shall not be responsible for damage caused by deep subterranean movements, landslides, failures of retaining walls, variation of load distribution, works performed outside the boundaries of the property or damage caused by mine galleries, old quarries, caverns, springs or the like or by the presence of acids or other destructive foreign matter and the effects of tree roots on shrinkable clays."
The guarantee further provided that:
"if the property is sold, (the fourth defendant) will recognise the purchaser as receiving the benefit for the remaining period of guarantee."
The Proceedings.
On the 22nd May 1984 the plaintiffs issued the writ in the present action and it was served a few days later. By the statement of claim they alleged:
"(i) negligence against the first defendant in their inspection of the bungalow and the preparation of the report. The plaintiffs complained that the bungalow had suffered structural damage as a result of continuing 'heave' of the underlying clay soil; that the first defendant should have been alive to the problem in an area prone to subsidence, and identified the work carried out in 1980;
"(ii) fraudulent, alternatively negligent misrepresentation against the second defendant on his own part and on behalf of the third defendant;
"(iii) negligence against the fourth defendant in carrying out the 1980 work and in particular by failing to provide a 'void' beneath the foundations of the bungalow to accommodate any heave of the clay soil which might take place;
"(iv) breach of the guarantee on the part of the fourth defendant in failing to repair the defective underpinning of the bungalow, or to compensate the plaintiffs as subsequent purchasers for their loss.
In relation to claim (iv) no point had been taken on privity of contract, until an attempt was made to do so during the hearing before this court. While leaving it open to the fourth defendant to take the point hereafter we did not allow it before us, since its validity or otherwise might depend on evidence which the plaintiffs as yet had no reason to place before the court.
During 1984 the action made reasonable progress. By the end of October all the defences had been filed and the third party notice issued and various requests made for further and better particulars of the statement of claim. Apart from the service of some particulars of the statement of claim on 22nd January 1986 no further step was taken by the plaintiffs until 6th May 1988, when a notice of intention to proceed was issued. On 17th February 1989 a further notice of intention to proceed was given followed by the issue of a summons for directions by the plaintiffs in March 1989. In the same month the defendants took out the various summonses to dismiss the action for want of prosecution, which are the subject of the present appeals. Master Lubbock made an order dismissing the plaintiffs' claim on 20th November 1989, which order was upheld by the deputy judge on 17th January 1990.
The delay by the plaintiffs in proceeding with the action extended to a period in excess of four years. They or their solicitors encountered some difficulty by reason of the fact that during this time they were divorced. Even allowing for that difficulty the delay was both inordinate and inexcusable and the plaintiffs do not suggest otherwise. The issue before the deputy judge was whether the delay has caused in the case of each of the defendants individually a substantial risk that it is not possible to have a fair trial or that he or it has suffered substantial prejudice. The judge concluded that "the defendants had established prejudice in the ordinary sense through their inability to have a fair trial."
The Effect of the Delay.
The causes of action, certainly against the first three defendants, had accrued at the time of exchange of contracts in January 1983 so that the limitation period expired in January 1989. It is not suggested that there was any further delay, even of a minimal kind, on the part of the plaintiffs after the latter date. Accordingly, the delay complained of took place exclusively during the limitation period. Should account be taken of such delay in an application of the present kind?
In Birkett v. James (1978) AC 197 it was held that a plaintiff whose action was dismissed for want of prosecution before the limitation period had expired was, save in an exceptional case, entitled to issue a fresh writ for the same...
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