The Occupiers of Samuel Garside House v Bellway Homes Ltd

Hearing date: 8 November 2023; further submissions received in and up to 27 March/22April 2024

Approved Judgment

This judgment was handed down at 10.00am on 25 June 2024 at a non-attendance hearing and subsequent circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

There are before me two applications made by the Claimants:

(1) An Application Notice dated 28 April 2023 (“the April Application”) seeking a Declaration that the Claim Form has been validly served, alternatively relief from sanctions in relation to its not having been validly served, and extensions of time for service of (a) the Claim Form and (b) the Particulars of Claim

(2) An Application Notice dated 23 August 2023 (“the August Application”) seeking (i) to add various Claimants who are minors (“the Additional Claimants”), and (ii) “that the Second Defendant's name be amended to “Sheppard Robson Limited”.

The Claim arises from the event of a serious fire (“the Fire”) at a block of flats (“the Building”), originally constructed in 2013, known as Samuel Garside House, 2 De Pass Gardens, Barking, Essex IG11 0FQ on 9 June 2019. The Claimants are occupiers or former occupiers of various of the flats in the Building. The First Defendant is the developer and constructor of the Building. The corporate architect of the Building was a company with the name Sheppard Robson Limited (“SRL”) and which is an associated entity of another company Sheppard Robson Architects Limited (“SRAL”). The Claimants seek damages against the Defendants at common-law and under the Defective Premises Act 1972 (“the 1972 Act”) for alleged negligence and breach of statutory duties. Those damages are both for physical damage and economic loss, and for personal injuries. All but one of the original Claimants is an adult, but three of the five Additional Claimants are, or are said to be, minors.

The Claim Form was issued on 6 June 2022 and against the First Defendant and “Sheppard Robson Architects LLP”. Various extensions of time for service of the Claim Form were agreed but steps for service were only taken in April 2023. The Defendants assert that those steps were insufficient to comply with the relevant Civil Procedure Rules (“CPR”). The Claimants contend that they were but also that there was a further agreed extension of time for service to June 2023; and so that they should be granted a Declaration that there has been good service; and, if they fail on both contentions in relation to a relevant Defendant, that they should be granted some relief from resultant sanctions.

The Claimants further contend that the naming of “Sheppard Robson Architects LLP” as the Second Defendant was a misnomer, or a mistake, for “Sheppard Robson Limited, and which should be corrected by an amendment of the name to “Sheppard Robson Limited”. SRAL and SRL contend that it is SRAL which has been sued and to substitute SRL at this point would be impermissible for limitation reasons.

There is a further difficulty, if the Claimants fail at least in relation to the April Application, as to what should be the consequence, and, in particular, in the light of the very recent Court of Appeal decision in R (on the application of Rezq Allah Koro) v The County Court at Central London [2024] EWCA Civ 94 (“ Koro”). This raises the question of whether the Defendants can actually complain about improper service on the facts before me.

The addition of the Additional Claimants is not opposed as such but is dependent upon what else occurs.

Applicable Limitation Provisions

The Applications exist within a particular context of the law relating to limitation.

Section 11 of the Limitation Act 1980 (“the 1980 Act”) provides for a time-limit for the bringing of any claim for negligence or breach of duty where the claim includes damages in respect of personal injury to have a time-limit of 3 years from the acquiring of relevant knowledge. This provision applies even if other non-personal injury damages are claimed. However, it is subject to a power for the Court to disapply the time-limit where such is just and equitable under section 33 of the 1980 Act. That power is often exercised especially where there will be no substantive prejudice to a defendant due to a delay beyond the expiry of the three-year limitation period.

Section 135 of the Building Safety Act 2022 has inserted a new section 4B into the 1980 Act, and provides as follows:

“135 (1) After section 4A of the Limitation Act 1980 insert—

“4B Special time limit for certain actions in respect of damage or defects in relation to buildings

(1) Where by virtue of a relevant provision a person becomes entitled to bring an action against any other person, no action may be brought after the expiration of 15 years from the date on which the right of action accrued.

(2) An action referred to in subsection (1) is one to which—

(a) sections 1, 28, 32, 35, 37 and 38 apply;

(b) the other provisions of this Act do not apply.

(3) In this section “relevant provision” means—

(a) section 1 or 2A of the Defective Premises Act 1972;

(b) section 38 of the Building Act 1984.

(4) Where by virtue of section 1 of the Defective Premises Act 1972 a person became entitled, before the commencement date, to bring an action against any other person, this section applies in relation to the action as if the reference in subsection (1) to 15 years were a reference to 30 years.

(5) In subsection (4) “the commencement date” means the day on which section 135 of the Building Safety Act 2022 came into force.”

(2) In section 1(5) of the Defective Premises Act 1972, for “the Limitation Act 1939, the Law Reform (Limitation of Actions, &c.) Act 1954 and the Limitation Act 1963” substitute “the Limitation Act 1980”.

(3) The amendment made by subsection (1) in relation to an action by virtue of section 1 of the Defective Premises Act 1972 is to be treated as always having been in force.

(4) In a case where—

(a) by virtue of section 1 of the Defective Premises Act 1972 a person became entitled, before the day on which this section came into force, to bring an action against any other person, and

(b) the period of 30 years from the date on which the right of action accrued expires in the initial period, section 4B of the Limitation Act 1980 (inserted by subsection (1)) has effect as if it provided that the action may not be brought after the end of the initial period.

(5) Where an action is brought that, but for subsection (3), would have been barred by the Limitation Act 1980, a court hearing the action must dismiss it in relation to any defendant if satisfied that it is necessary to do so to avoid a breach of that defendant's Convention rights.

(6) Nothing in this section applies in relation to a claim which, before this section came into force, was settled by agreement between the parties or finally determined by a court or arbitration (whether on the basis of limitation or otherwise).

(7) In this section—

“Convention rights” has the same meaning as in the Human Rights Act 1998;

“the initial period” means the period of one year beginning with the day on which this section comes into force.”

In principle, it was common-ground before me that the effect of this new section 4B of the 1980 Act was that the limitation period for bringing claims under section 1 of the 1972 Act has not yet expired; and that this would apply to resultant claims for physical damage and economic loss.

However, the position may be different in relation to claims brought in common-law negligence as section 4B only applies to section 1 of the 1972 Act claims. I was not specifically addressed on when those claims might expire or have expired except that it was common-ground (at least to some extent) that a claim at common-law which included a claim for personal injuries would initially attract section 11 of the 1980 Act so that its limitation period would be three years (from knowledge of injury), in this case expiring shortly after the issue of the Claim Form, albeit subject to potential extension under section 33 of the 1980 Act.

There also seemed to be some mutual agreement that claims for personal injuries were simply governed by section 11 (and section 33) of the 1980 Act and therefore did not fall within and were not assisted by the new section 4B of the 1980 Act. That may be correct either generally or at least if such claims cannot be made the subject of claims under section 1 of the 1972 Act (although even then there would be a tension between the two sections, as section 11 of the 1980 Act applies to any claim which includes a claim for damages for personal injuries). I am not at all sure that either proposition is correct not having been addressed in any detail on them or the construction of new section 4B.

It was common-ground that the claims of the existing minor claimant and of the Additional Claimants (insofar as they are children as they assert), being all claims brought by minors, have the benefit of section 28 of the 1980 Act which effectively postpones the starting date from which limitation is to run for their claims (assuming that they were alive when the relevant right of action accrued and they are not claiming under...