Roger Ward Associates Ltd and Others v Britannia Assets (uk) Ltd (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson |
| Judgment Date | 14 June 2013 |
| Neutral Citation | [2013] EWHC 1653 (QB) |
| Court | Queen's Bench Division |
| Date | 14 June 2013 |
| Docket Number | Case No: QB 2013 0094 |
[2013] EWHC 1653 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Coulson
Case No: QB 2013 0094
Sean Brannigan QC (instructed by CMS Cameron McKenna LLP) for the Appellants/ Defendants
Matthew Horton QC (instructed by Goldkorn Matthias Gentle Page) for the Respondent/Claimant
Hearing date: 11 June 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is an appeal by the appellants/defendants against the reserved judgment of Master Kay QC dated 25 January 2013. In that judgment, the Master concluded that, although the claimant's claim for breach of contract against the defendants was statute-barred, it was arguable that the concurrent claim in tort was not. He therefore declined the defendants' application to strike out the entirety of the claim. Before me, a potentially important issue arose as to the inter-action between, on one hand, the slow resolution of a planning dispute and, on the other, the accrual of the necessary knowledge for the purposes of section 14A(4)(b) of the Limitation Act 1980 ("the Act").
The defendants' original application was to strike out pursuant to CPR r.3.4 and/or for summary judgment pursuant to CPR Part 24. For the purposes of this Judgment it is unnecessary for me to go through the various legal principles underpinning such applications. That is because, as Mr Horton QC rightly said, the issue here is very straightforward. If, on the balance of probabilities, and on the basis of the evidence before the court, I conclude that the claim in tort against the defendants is statute-barred, then the defendants are entitled to strike out the claim and/or to enter summary judgment. If, on the balance of probabilities, the claim is not statute-barred then the appeal will be refused and the defendants' underlying applications dismissed.
I should say at the outset that this is not one of those cases where the court could conclude that the claim may be statute-barred, but could not give a concluded view because it was said by one party (or agreed by both parties) that further evidence will or may come to light which could be relevant on the limitation issue. There was no application to amend the Particulars of Claim (which Mr Horton stressed that he did not draft). There was no application by the claimant to put in any further evidence. There was no suggestion by either side that there might be further information available in the future which could assist the court in resolving the 'knowledge' issue. Thus, as we shall see, the appeal and the underlying application turns solely on the application of the well-known principles arising under s.14A(4)(b) of the Act to the brief facts set out in the papers.
THE FACTUAL BACKGROUND
In about March 2003 onwards, the claimant engaged the defendants to provide planning advice in respect of a former Conoco oil distribution site in Rochester ("the site"). Paragraphs 11–14 of the Particulars of Claim make clear that the claimant asked the defendants whether planning consent was required to demolish the numerous large fuel storage tanks at the site. The defendants advised that planning permission was not required, and the fuel storage tanks were immediately removed. The defendants also advised that the site could be let out for storage and distribution.
Paragraphs 20 and 21 of the Particulars of Claim set out the claimant's case that this advice was negligent. It is common ground that the allegations of negligence do not go beyond that original advice in 2003.
In 2005/2006, it became apparent that the Planning Department of Medway Council ("the Council") were concerned that the site, which had planning permission for fuel storage, was now being used for general storage and distribution. Correspondence in 2006, all of which was copied to the claimant, made plain that the Council had decided that no planning consent existed for the new use of the site (see the defendants' letter of 19 September 2006), and that a fresh planning application had to be made. Indeed, the defendants took a number of preparatory steps for the making of such an application, and repeatedly made it clear to the claimant that these steps were necessary because the Council had insisted on a retrospective planning application. The defendants' letter of 13 October 2006 made plain that such an application "will be contentious". The usual additional documents, such as traffic impact studies and the like, were also going to be required.
Although it was apparent to everyone that the Council required a retrospective planning application, no such application was ever made. Accordingly, on 30 March 2007, the Council served on the claimant a Planning Contravention Notice ("PCN"). The PCN said:
"It appears that there has been a breach of planning control at the above mentioned premises in that there appear to be unauthorised operations being conducted within the site. In the circumstances, I require additional information prior to the commencement of Enforcement Action in regard to this matter."
It appears that nothing happened in relation to that notice and an Enforcement Notice ("EN") was served on 13 July 2007. There then began a lengthy series of appeals and public hearings; the issue of 11 further ENs on 3 November 2008; and, on 14 June 2010, the dismissal of the appeals against those 11 ENs (although, at the same time, the original EN was quashed). The further appeals against that dismissal were themselves refused on 27 July 2011. Permission to appeal against that decision was refused by Sullivan LJ on 13 July 2012.
The claim form was issued over two years' earlier, on 5 June 2010.
WHAT IS NOT IN ISSUE
The claimant accepts that any claim against the defendants for breach of contract, which would have accrued at the date of the breach, is statute-barred. Since all the relevant breaches occurred in 2003, and the proceedings did not start until 2010, it seems to me that such a concession is rightly made.
A rather more curious point arises in respect of damage. There can be no doubt that the Particulars of Claim proceeds on the basis that damage occurred in 2003. That is the only sensible reading of paragraph 22 of the Particulars of Claim, which is expressly concerned with loss and damage. That paragraph concludes that, as a result of the events in 2003 (namely the removal of the fuel storage tanks in reliance on the defendants' advice), the site had "a nil use in terms of its lawful use" 1.
However, before me, Mr Horton developed an argument (which had not been advanced in front of Master Kay), to the effect that, although the allegedly negligent advice in 2003 meant that the claimant immediately lost its bargaining position with the Council in relation to what could be done with the site, and had therefore suffered a loss in 2003, damage did not occur until the final resolution of the planning process in 2012.
I do not find this rather novel distinction between loss, on the one hand, and damage, on the other, particularly helpful. As I have said, the Particulars of Claim say in clear terms that damage occurred in 2003. Moreover, even on Mr Horton's new argument, it appears to be accepted that some damage occurred in 2003 (namely the loss of the bargaining position) so that what remained was the identification of the particular heads of loss and/or quantification. I think Mr Brannigan QC is right when he says that, on the logic of the claimant's case, the failure to deal with the planning position before removing the tanks meant that, even on the claimant's case, there was always going to be loss and extra expense when the Council subsequently insisted on a retrospective planning application.
There is also a further anomaly raised by Mr Horton's new argument as to when damage occurred. If he is right, and the damage did not occur until 2012, then it must follow that these proceedings were commenced in 2010 at a time when the claimant did not have a cause of action (damage being a necessary ingredient to any cause of action in tort). Of course, in those circumstances, the remaining claim would be liable to be struck out in any event.
In the round, it seems to me that the only sensible conclusion must be the one that was agreed in front of Master Kay, namely that the damage occurred in 2003. That is what is pleaded and that, so it seems to me, is the basic assumption behind the claimant's entire claim.
THE ISSUES AS TO KNOWLEDGE
In those circumstances, the claimant is driven to argue that the claim is not statute-barred because of s.14A(4)(b) of the Act, and in particular, the submission that the claimant did not have the necessary knowledge until less than three years before 5 June 2010. That is really at the heart of the dispute between the parties. There are, so it seems to me, three issues:
(a) Issue 1: Have the claimant's advanced a proper case under s.14A(4)(b) of the Act?
(b) Issue 2: What is the requisite level of knowledge?
(c) Issue 3: When did the claimant have that level of knowledge?
I propose therefore, to summarise the law in this area and then go on to deal with those issues separately.
THE LAW
Section 14A of the Limitation Act 1980
Section 14A is in the following terms:
"(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the...
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