Limitation: date of knowledge

United Kingdom

It is important that both claimants and defendants and their advisers are aware of the possibility of claims being statute-barred due to expired limitation periods.

The case of Harris Springs Ltd v Howes serves as a useful reminder of the complex factual analysis that can be required when deciding whether a tortious claim is statute-barred.

Section 14A of the Limitation Act 1980 was introduced to cover claims in tort for negligence involving latent damage. It provides that a claim may be brought within three years from the date when the claimant had both:

  • the right to bring an action for damages; and
  • the knowledge required for bringing an action for damages. Knowledge does not have to be actual knowledge: the claimant will be found to have knowledge if he could reasonably be expected to know something from facts he could ascertain, or from facts he could ascertain with the help of expert advice, which it would have been reasonable for him to seek

The courts had previously considered the knowledge requirements of section 14A in Hawards v Fawcetts holding that there are two tests for the date of “knowledge”:

  • the “investigations test”: when did the claimant know enough that it was reasonable for him to start preliminary investigations into the possibility of negligence?
  • the “essence test”: when did the claimant have knowledge of the facts constituting the essence of the negligence complaint?

To read our law now on the House of Lords’ decision in Hawards v Fawcetts click here.

Harris Springs concerned alleged defects in foundations designed by the defendant structural engineer. Applying the above tests, the High Court held that the date of knowledge was Autumn 2003, so proceedings were not statute barred, for the following reasons:

  • the claimant did not know or suspect that there might be a problem with the foundations prior to the floor slab cracking in Autumn 2003
  • although widening of an expansion joint had been noted in August 1995, at that time not even the defendant regarded the structural movement as significant
  • prior to the floor slab cracking, it would not have been reasonable for the claimant to have sought expert engineering advice from anyone other than the defendant

The decision illustrates how the tests to be applied when considering section 14A require the defendant to show more than the date on which problems manifested themselves. There may also need to be evidence that there was enough cause for alarm for it to be reasonable for independent advice to be taken - particularly if the defendant is approached and gives reassurance in relation to the significance of the problem.

Further reading:
Harris Springs Ltd v Howes [2008] All ER (D) 60 (Feb)