Renwick & Anor v Simon and Michael Brooke Architects & Ors [2011] EWHC 874 (TCC)

[2011] EWHC 874 (TCC)Case No HT-10-278
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 th May 2011
Before
MR JUSTICE AKENHEAD
Between
(1) JAMES RENWICKClaimant(2) VANESSA RENWICKClaimant(1) SIMON AND MICHAEL BROOKE ARCHITECTSDefendants(2) WILLIAM ATTWELL AND ASSOCIATESDefendant(3) AQUAREND LIMITEDDefendant
Edward Bennion-Pedley (instructed by PM Law) for ClaimantAlexander Hickey (instructed by Hill Dickinson LLP) for Second DefendantHearing Hearing dates: 25 March 2011
JUDGMENT
[1]The Second Defendant, William Attwell and Associates, ("Attwell”), apply for summary judgement in effect to have the Claimants’ claim dismissed on the grounds that its limitation defence is bound to succeed. Issues are raised under Section 14A of the Limitation Act 1980 and as to when time for the purpose of limitation begins to run. The Facts[2]So far as the facts are concerned as set out in this section of the judgement, the findings are made solely for the purposes of this application and are not intended to bind the trial judge. They are based on the pleadings and the evidence put before the court on Attwell’s application.[3]Mr and Mrs Renwick have at all material times been the owners of a house, 38, Wandle Road London SW17 7DW. Simon Smith and Michael Brooke Architects was a firm of architects (the “Architect”), Attwell was a firm of structural engineers and the Third Defendant, Aquarend Ltd, was a waterproofing contractor, each of whom was engaged by the Renwicks in the period 2000 to 2002. In late 2000, the Renwicks decided to extend and refurbish their home; this project included the construction of a large basement room beneath their rear garden which came to be known as "the Garden Room". Unsurprisingly one of their requirements was that this room was to be waterproof. They say that they engaged the Architect to provide various design, construction and advisory services in relation, amongst other things, to this aspect of the matter.[4]The Renwicks plead that they contractually engaged Attwell as a structural engineer to provide "structural advice on design for the Garden Room, such that the completed Garden Room would be suitable for both building regulation approval and construction purposes, which…required that the said structural advice and design should deliver a watertight structure." They also plead that Attwell was additionally required to inspect the works as they proceeded.[5]A contractor, Concrete and Clay Underpinning Ltd ("the Contractor"), was employed by the Renwicks in about May 2001 to carry out the structural work for the Garden Room and the Contractor started work about June 2001. It is suggested that initially the Garden Room was to be a conventional design protected by external waterproofing membrane and covered by an external skin of masonry. However, it is pleaded that there had been a change on the advice of the Architects and/or Attwell in March 2001 whereby “the concrete…was to be dosed with Sika 1 admixture and the said external waterproofing omitted and replaced by volclay matting on the vertical components and asphalt on the horizontal”. The Contractor is said to have finished its work by about November 2001.[6]Fairly soon thereafter, substantial quantities of water came into the Garden Room. The Contractor was called in and pumped out the water. There clearly was a serious problem because the Architect wrote to the Contractor (copied to Attwell and the Renwicks): “I inspected the basement today, 6 days after my last visit which was just after you pumped out the water and attended to some leaks. …Despite this, the level of the water has risen by about 75 mm so in my view the construction is still leaking… The contract was to provide a waterproof basement which it does not yet appear to be. From my point of view it may be that the solution is simple but alternatively it might be necessary to tank the entire space which was not allowed for and will be an additional cost to my clients. Until the basement is leak free, I do not see how I can certify the contract as complete. I do appreciate that money is tight for you so it is important that the lightwell walls go up quickly to eliminate the question of rainwater. I hope that these will be built within a week but I am still convinced that the problem is that basement floor level."[7]Mr Renwick accepts that the room filled up with water at an alarming rate. Mrs Renwick also confirms this in an e-mail of 19 February 2002 to the Architect, in which her frustration with Attwell also emerges:
“I returned to site yesterday afternoon and the underground room having been pumped dry was rapidly filling up with water again. You could see quite clearly where the water was gushing in. At this stage, before the joints are covered over, we require the structural engineer to visit site and give us a considered report, failing this we will have no option to take legal action against him to have the whole job re-done.”
[8]This was followed by a letter dated 22 February 2002 from the Architects to Attwell which expressed disappointment that Attwell had not been on site on the previous Monday and continued: “We were all concerned with the situation in the basement room which was still filling up fast at about four" a week. Concrete & Clay have been plugging holes all this week but I do not know with what success as I am in Wales at present. The concern is that as soon as certain holes are plugged, the pressure will merely move elsewhere. Most of the problems seem to be at the joint between the kicker upstand and the walls. I have seen no certificate from Hansens who provided the Sika mix, but the system of Sika mix and Sika joints, which is supposed to give a waterproof construction, does not appear to have worked. Furthermore, the workmanship is bad, particularly the shuttering which was poor, giving very uneven walls which are far from smooth in places. We have had a quote from the London Basement Company as the enclosed to remedy the situation if necessary. This involves a sump pump and lining to the walls and floor to allow water to seep behind the sump. The costs are roughly similar to that held back from Concrete & Clay at present. This major loss of confidence needs to be dealt with quickly and I would like you to produce a thorough report on the concrete, the workmanship and the solutions to providing a waterproof shell as intended." This was copied to the Renwicks.[9]Attwell’s Mr Dixon visited the site shortly thereafter and he wrote to the Contractor on 28 February 2002 (copied to the Renwicks and the Architect): “… we completed our inspection as planned and enclose our observations. The general concrete surfaces appear to be reasonably sound, although there are several areas of honeycombing evident in specific locations especially at the bottom and side of pours i.e against construction joints. There are also a small number of isolated damp patches on the wall furthest away from the main building. Construction joints leave much to be desired with abrupt changes in plane of up to 100 mm being typical. This appears to be as a result of movement of the wall shutters during the pour. We consider this, combined with poorly aligned hydrophilic sealant, to be the main reason for the leaks evident throughout the structure at present. When we last spoke on site with Paul Langley, he said that he intended to line up the internal faces by scabbling the surface and applying a coating of Sika modified mortar. Is this still your intention? A visual inspection of the repairs already carried out infers a reactive approach has been utilised to date with little thought and planning other than ‘plug what is visibly leaking’. If this is not the case we would appreciate seeing the methodology being used. In our opinion the main zone for water ingress is at kicker level in the walls. Only when that band has been effectively rectified can we look at joints within the floor slab. In our fax we asked if Sika had been contacted for their opinion. We believe that they should be able to provide invaluable guidance to rectify the problem, and confirm whether or not the situation is retrievable utilising current methods and materials. Could you please speak to them as a matter of urgency and inform us of their reactions. If you feel that we can contribute to the quick resolution of the problem which is currently dogging the project we would be happy to meet and discuss alternatives with you at your convenience. Please ring to confirm."[10]The Architect replied on the same day (copied to the Renwicks):
“…I am very concerned that we all work together to deal with this matter. Concrete & Clay have now spent almost two weeks cutting out joints and plugging with Sika stop. Nevertheless the room is still filling up at about 30 mm a day, some 3,300 litres. Concrete & Clay have assured us that whatever it takes they will waterproof the basement and there will come a point when they give up trying to plug the holes and resort to other means which will have a cost implication as far as they are concerned. We have had an indication from the London Basement company, as the enclosed, that it would cost in the region of £25,850.00 to sort the problem out… I am holding back Concrete & Clay’s last request for payment at about £15,000 and would like to suggest to them when they feel that they need to resort to other means that we will pay them a certain amount, leaving sufficient for someone else to complete the works.”
[11]Sika Ltd was called in, by the Architect, to inspect and make recommendations which it did by fax dated 19 March 2002:
“Further to our site meeting on 19 March 2002 concerning the reported problems at the above contract, we comment as follows:- Observations The basement construction was covered on the base slab with water approximately 2-3 inches deep with signs of continual water ingress. The concrete walls were very badly compacted with numerous errors of honeycombed concrete visible in all parts of the basement including the walled joints. It was also noted that there had been some slight movement between certain wall shutters. A number of patch repairs have been conducted to the basement walls, however, these seem to be inadequate and have failed and are starting to show signs of water ingress. Comments The water ingress to the basement is a result of poor workmanship with no/insufficient compaction to the concrete, which is clearly visible due to the amount of honeycombing concrete. Doubt is also raised concerning the quality of the workmanship in the kicker joints as this will be the weakest part of the structure, however, due to the amount of water present a full inspection was not possible. Conclusions The remedial actions would require a render to the whole basement using Sika 1 Structural Tanking System and possibly additional repairs/joint repairs to depend upon further inspection. We will forward your details to our Waterproofing Division [Michael Hooper…] and have asked him to liaise with one of our specialist repair contractors and to arrange a site visit to progress this matter further.”
Observations Comments

Conclusions

[12]On around 19 March 2002, upon the Architect’s advice, the Renwicks terminated their contract with the Contractor. About 10 days later, at the Architect’s invitation, the Renwicks plead that Aquarend inspected the Garden Room and that on about 30 April 2002 it recommended the use of a waterproof internal render including "combiflex” jointing over day joints in the floor and upstands. It is asserted that, on the Architect’s and Aquarend’s advice that this would be a lasting solution, the Renwicks accepted Aquarend’s quotation. Aquarend then proceeded to complete these works in about June 2002 and in about September 2004 it gave the Renwicks a 10 year guarantee from that time.[13]Between June 2002 and May 2008 isolated damp spots appeared in the ceiling of the Garden Room which were repaired by Aquarend, on the advice of the Architect. In July 2007, the Renwicks had contacted a Mr Carter of TASC Associates Ltd, now one of the experts, to discuss with him "issues relating to dampness", although these may have related to dampness by a skylight and on the ceiling. By the summer of 2008 water started to accumulate under the flooring in the Garden Room. Floor coverings began to become sodden and mouldy and moisture started creeping up the walls and Mr Carter was called back in. More recent photographs revealed in the Garden Room, now cleared of furnishings and furniture, standing water. The Pleadings[14]The Renwicks issued their proceedings on 26 July 2010 and their Particulars of Claim was served on 23 November 2010. It sets out the history, broadly as set out above, but it does not positively suggest that Attwell played any material part in the recommendation for remedial work or in the involvement of Aquarend. They plead that since 2008 they have caused investigations "to be carried out to show that the internal render and/or reinforced concrete has cracked and/or that the internal render has become de-bonded from the reinforced concrete structure”. The effect has been “to allow water to percolate through the reinforced concrete and/or internal render."[15]The allegations of negligence have been pleaded in Paragraph 30:
“PARTICULARS OF NEGLIGENCE OF THE FIRST AND/OR SECOND DEFENDANTS 30.1 failing to obtain or instruct a geotechnical report to ascertain (amongst other things) the level of the water table and soil conditions; 30.2 failing to specify any or any adequate external perimeter drainage; 30.3 in specifying volclay matting to the vertical components which the First and/or Second Defendants ought to have known were incompatible with the asphalt specified for the horizontal component; 30.4 in specifying the use of and reliance upon Sika 1 admixture in isolation rather than as part of a membrane and some system or other waterproofing system; 30.5 in failing to advise and/or monitor the said work of Concrete & Clay adequately or at all allowing it (inter alia) to cast the floor and walls contrary to specification at varying thickness with no or no adequate perimeter drainage and with inadequately contacted concrete; 30.6 in failing to advise the Claimants that the said work done by Concrete & Clay was so defective as to require to be removed and be rebuilt; 30.7 in advising the Claimants to remedy the problems caused by the defective work by way of internal render… PARTICULARS OF NEGLIGENCE AS AGAINST THE SECOND DEFENDANT 30.11 in failing to specify adequate reinforcement within the vertical components of the Garden Room…”
Substantial damages were claimed that total over £900,000.

PARTICULARS OF NEGLIGENCE AS AGAINST THE SECOND DEFENDANT

[16]While some limited issues are taken on the history by Attwell in its Defence, it positively pleads a Limitation Act defence, it being denied that the Claimants are entitled to rely upon Section 14A of the Limitation Act 1980 to extend the limitation period to the date of the issue of the Claim, 26 July 2010.[17]On 23 February 2011, Attwell issued its application for summary judgement against the Renwicks on the basis that the claims in contract and in tort were statute barred under the Limitation Act 1980. Essentially, Attwell’s Counsel argues that there is no realistic prospect that its limitation defence will fail. It argues that any claim in contract runs from the date of the relevant breaches (if any) which must all have occurred no later than 2002, getting on for eight years before the issue of proceedings. Any claim in tort, it argues, runs from the date when damage first occurred which was between late 2001 and about March 2002 when serious flooding occurred. For the purposes of Section 14A, he argues that more than enough had occurred and was known about by the Renwicks in 2002 to set the three-year time period allowed by that Section to start running. The Renwicks’ Counsel argues however that this is not a case which is suitable for summary judgement because there may be separate damage flowing from the possibly negligent involvement of Attwell in 2002 or indeed from earlier breaches of duty on its part. The Renwicks, he argues, should not, at least on a summary judgement application, be judged as having had sufficient knowledge before 2007 to justify the three-year period referred to in Section 14A to start running. The Law[18]I start with the Limitation Act 1980, as amended:
“2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. 5. An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. 14A (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 period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued. (2) Section 2 of this Act shall not apply to an action to which this section applies. (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below. (4) That period is either— (a) six years from the date on which the cause of action accrued; or (b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above. (5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action. (6) In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both— (a) of the material facts about the damage in respect of which damages are claimed; and (b) of the other facts relevant to the current action mentioned in subsection (8) below. (7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (8) The other facts referred to in subsection (6)(b) above are— (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and (b) the identity of the defendant; and (c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant. (9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above. (10) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire— (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
[19]Section 14A provides a reasonably self explanatory code and there is a limitation longstop of 15 years from the actionable breach of duty. This section has been considered in a number of cases, the most important of which was the case of Haward and others v Fawcetts [2006] 1 WLR 682. The facts are different from the current case as they involved allegedly negligent advice by accountants in relation to the acquisition of a controlling interest in a company which turned out to be a serious loss-making concern. Relevant parts of the opinions of the Law Lords are as follows: “9. Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes [1991] 1 WLR 428, 443. He noted that knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: 'suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice'. In other words, the claimant must know enough for it to be reasonable to begin to investigate further. 10. Questions about the degree of detail required have mostly arisen in the context of the need for a claimant to know 'the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence': section 14A(8)(a). Consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff [1986] 1 WLR 1352, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. Where the complaint is that an employee was exposed to dangerous working conditions and his employer failed to take reasonable and proper steps to protect him it may well be sufficient to set time running if the claimant has 'broad knowledge' of these matters. In the clinical negligence case of Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114, 117, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates 'in general terms' that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren Purchas LJ said that what was required was knowledge of the 'essence' of the act or omission to which the injury was attributable: Nash v Eli Lilly & Co [1993] 1 WLR 782, 799. In Spargo v North Essex District Health Authority[1997] PIQR P235 Brooke LJ referred to 'a broad knowledge of the essence' of the relevant acts or omissions. To the same effect Hoffmann LJ said section 14(1)(b) requires that 'one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based': Broadley v Guy Clapham & Co [1993] 4 Med LR 328, 333. 11. A similar approach is applicable to the expression 'attributable' in section 14A(8)(a). The statutory provisions do not require merely knowledge of the acts or omissions alleged to constitute negligence. They require knowledge that the damage was 'attributable' in whole or in part to those acts or omissions. Consistently with the underlying statutory purpose, 'attributable' has been interpreted by the courts to mean a real possibility, and not a fanciful one, a possible cause of the damage as opposed to a probable one: see Nash v Eli Lilly & Co [1993] 1 WLR 782, 797-798. Thus, paraphrasing, time does not begin to run against a claimant until he knows there is a real possibility his damage was caused by the act or omission in question. [Per Lord Nicholls]48. The critical issue, therefore, is whether by that date Mr Haward lacked knowledge that the "damage", i.e. the investment of Haward money in 1994 and 1995, "was attributable in whole or in part" to the acts or omissions of Fawcetts alleged to constitute negligence. This is the sub-section (8)(a) issue.49. As to this I would, for my part, accept and apply the opinions expressed in Nash v Eli Lilly, Dobbie v Medway Health Authority and the Hallam-Eames case that the requisite knowledge is knowledge of the facts constituting the essence of the complaint of negligence. [Per Lord Scott] 57. This appeal turns largely on the interpretation, and the application to a rather confused set of facts, of section 14A (8)(a). The effect of that provision is that the claimant must know, before time starts to run, that "the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence." It is to be noted that this provision may involve an exercise in hindsight spanning a considerable period of time. Its function is as part of the process of ascertaining the "starting date" defined in section 14A (5)—that is, the date from which the alternative limitation period in section 14A (4)(b) is to run. As numerous reported cases show, the starting date may occur at a time when a claimant's knowledge about his claim is far from complete. Inquiries and investigations may have to be made, and expert advice may have to be obtained as to how the claim should be pleaded, and how special damages should be quantified. A claimant may have the requisite knowledge (as Slade LJ said in Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1365) "even though he may not yet have the knowledge sufficient to enable him or his legal advisers to draft a fully and comprehensively particularised statement of claim." 66. Nevertheless the Court of Appeal has given clear general guidance as to the principle to be applied, even if its application raises, as it inevitably will, some difficult borderline cases. The general principle is set out in the second paragraph of the passage which I have quoted from Hallam-Eames. The Court is concerned with the identification of the facts which are the "essence" or "essential thrust of the case" or which "distil what [the claimant] is complaining about."…Nevertheless the body of Court of Appeal authority which culminates in Hallam-Eames provides a reasonably clear and coherent test, and I see nothing in the legislative purpose of the Latent Damage Act 1986, or in its scheme or language, to lead your Lordships' House to depart from that line of authority. Nor is it necessary to do so, in my opinion, in order to dispose fairly of this appeal. [Per Lord Scott] 90. What the claimant must know to set time running is the essence of the act or omission to which his damage is attributable, the substance of what ultimately comes to be pleaded as his case in negligence. That essence or substance here could no doubt be characterised in either of two ways: either as the act of recommending investment in the company (or omitting to caution against it—on the particular parts of this case these are two sides of the same coin), or, with greater particularity, the act of recommending investment without first carrying out the investigations necessary to justify such positive advice. Having at first preferred the latter characterisation, I have come to prefer the former. True, under the former the claimant knows nothing beyond the fact that his advisers led him into what turned out to be a bad investment; he does not know, as under the latter characterisation he would, that he has a justifiable complaint against his advisers. But he surely knows enough (constructive knowledge aside) to realize that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers' investment advice, and enough therefore to start an investigation into that possibility, which section 14A then gives him three years to complete. [Per Lord Brown] 106. Under s.14A the onus is on a claimant to plead and prove that he first had the knowledge required for bringing his action within a period of three years prior to its bringing. Subsection (6) of s.14A distinguishes two aspects of the knowledge required. The first aspect relates to the seriousness of the damage, the second to "the other facts relevant to the current action" including in particular that such damage was attributable in whole or part to the act or omission alleged to constitute negligence and the identity of the defendant. The seriousness of the damage is relevant because there may be cases where, although it is known that loss has been suffered due to the negligence of another person, the loss may appear for a time so minor that no-one would contemplate instituting proceedings… 113. Turning to the phrase "the act or omission which is alleged to constitute negligence", the word "constitute" is in my view significant. It indicates that the claimant must know the factual essence of what is subsequently alleged as negligence in the claim. Once such knowledge has been acquired, it is under subs. (9) irrelevant whether or not the claimant knew that the relevant act or omission "did or did not, as a matter of law, involve negligence". So, there must be knowledge of the act or omission allegedly constituting negligence, but there need not be knowledge that, as a matter of law, such act or omission involved negligence. 118. For present purposes what matters is that it is, in my opinion, wrong to suggest that all a claimant needs to know is that he has received professional advice but for which he would not have acted in a particular way which has given rise to loss, or that he has not received advice when, if he had received it, he would have acted in a way which would avoided such loss. The defendants' primary contention to that effect was, I think, accepted by the judge at first instance (cf paragraph 103 above), and was advanced again before the House by counsel for Fawcetts. But it is, in my view, untenable, and could lead to unjust results. Mere "but for" causation is insufficient. This was pointed out by Hoffmann LJ in Hallam-Eames v. Merrett Syndicates [2001] Ll.R. Prof. Neg. 178, 181. The decision in that case illustrates the point, since it was not the writing of the run off policies or of the reinsurances to close ("RITCs") or the certification by the auditors of the accounts which were alone regarded as the acts or omissions alleged to constitute the negligence. Rather it was those facts plus the fact that they exposed the Names to potentially huge liabilities (and in the case of the accounts also attributed values to incurred but not reported losses - "IBNRs") none of which were capable of reasonable quantification: see especially at p.181 (top right and the whole left column). A claimant who has received apparently sound and reliable advice may see no reason to challenge it unless and until he discovers that it has not been preceded by or based on the investigation which he instructed or expected. A claimant who has suffered financial loss in a transaction entered into in reliance on such advice may not attribute such loss to the advice unless and until he either makes the like discovery about the inadequacy of the work done, or at least discovers some respect in which the transaction was from the outset unsound giving him (as Hoffmann LJ said) prima facie cause to complain. Such a scenario may well occur where there are other causes of loss which appear to him capable of explaining the whole loss. 122. The third element is what is meant by damage being "attributable" in whole or part to the act or omission allegedly constituting negligence. The authorities establish that the word "attributable" means here "capable of being attributed", rather than "caused by": Guidera v. N.E.I. Projects (India) Ltd. (30 January 1990, CA Tr. No. 60 of 1990) per Sir David Croom-Johnson, Nash v. Eli Lilly at pp.797-8, per Purchas LJ and Dobbie v. Medway Health Authority at p.1240, per Sir Thomas Bingham MR…” [Per Lord Mance] "even though he may not yet have the knowledge sufficient to enable him or his legal advisers to draft a fully and comprehensively particularised statement of claim."[20]It is probably unnecessary in the context of the current case to refine all these dicta more than this:(a) The starting date for the three-year period under Section 14A is the "earliest date" on which any given Claimant had the knowledge required for bringing a claim in damages in relation to the damage with which the claim is concerned and the right to bring the claim (Section 14A (5)). Knowledge in this context does not mean certainty but knowledge of sufficient essential facts or matters to institute either a claim or the taking of advice or the collation of evidence will often suffice to institute the "earliest date".(b) This “knowledge” is of the material facts about the damage for which damages are claimed and of other facts relevant to the claim (Section 14A (6)). These are such facts as would lead a reasonable person who had suffered the damage in question to consider it sufficiently serious to justify instituting proceedings for damages (Section 14 A(7)); such facts include that the damage in question is attributable at least in part to the basic acts or omissions said ultimately to constitute negligence and the identity of the defendant (Section 14A (8)); “attributable” in this context means capable of being caused by as opposed to demonstrably caused by the negligence. It is not necessary to show that the claimant knew that the acts or omissions constituted negligence as such. (Section 14 A(9)). Discussion[21]A first step is to analyse what it is that the Renwicks are now complaining about against Attwell. It is obviously that the Garden Room is unfit for purpose by reason of its inability to keep out water, primarily groundwater, by reason of defaults on the part of Attwell. With one exception, all the complaints of breach of duty, bar one or possibly two, relate to alleged failures of Attwell which had occurred up to the supposed completion of the works by the Contractor. Thus, for example, the complaint that Attwell had failed to specify adequate reinforcement must have been at design stage or at latest during construction of the reinforced concrete work by the Contractor; similar considerations apply to the complaint about careless inspections or monitoring of the construction work. The one or two complaints which relate possibly to the post-construction period is that Attwell was careless in advising the Claimants to remedy the problems caused by the defective work by way of internal render and possibly the failure to advise that the only solution was to remove the concrete work and have it done again properly; this must relate to the period after flooding first seriously emerged, December 2001 to March 2002. The difficulty however is that the pleaded facts do not suggest that Attwell actually advised on the remedial solution; it is clear from its letter dated 28 February 2002 (see above) that Attwell was certainly asked to and did report (in that letter) on the cause of the problems and at least suggested that Sika was brought in to advise (which is what happened). What is not clear is whether Attwell was, after Sika’s report, called in to advise further or played any part in the involvement of Aquarend. I was told by Counsel for the Renwicks, on instructions, that Attwell was so involved.[22]From the pleadings and the contemporaneous documentation, the following is clearly established:(a) The Contractor was and was perceived to have been in serious breach of its contract with the Renwicks in terms of culpably poor workmanship and in the execution of wholly ineffective remedial work.(b) The Renwicks must have been and were aware of this. The Contractor’s failings and inability to provide an effective solution were so bad that the Renwicks terminated their contract with the Contractor. They withheld some £15,000 from the Contractor and felt justified in putting that towards the cost of the Aquarend remedial solution.(c) It was known and believed that this extensive bad workmanship was the cause of the water penetration.(d) Whilst the Renwicks were being advised and believed that the cause of the water problems in 2001-2 was the Contractor’s bad workmanship, the only other possible cause would be inadequate design and there were only two possible parties in the frame for this, the Architect and Attwell.(e) In terms of culpability, it had clearly crossed at least Mrs Renwick’s mind that Attwell were at least in part to blame. Her e-mail of 19 February 2002 could be put down to simple frustration but that seems inherently unlikely given the language:
“we require the structural engineer [Attwell] to visit site and give us a considered report, failing this we will have no option to take legal action against him to have the whole job redone.”
That suggests inevitably that she considered, understandably, that Attwell was liable. There could be no possibility that legal action to “have the whole job re-done” could realistically happen if there was at least no perceivably arguable case against Attwell. The Renwicks would obviously know what they had broadly retained Attwell for and, for instance, whether Attwell had some sort of supervision or inspection obligation.[23]All the elements to support a cause of action against Attwell for breach of contract and in tort for negligence would be present. Bad workmanship was involved in work which had been designed and inspected by Attwell. This bad workmanship and a continuing failure by the Contractor to remedy the problem caused and were continuing to cause serious water penetration into the Garden Room; it was unusable. There was at least bad workmanship which Attwells’ supervision or inspections had failed to pick up and this had caused extensive water penetration. The Renwicks actually called in or went along with Sika being called in to report and make recommendations, albeit that, for reasons which are currently unclear, they did not accept these recommendations at least so far as having Sika back; that itself indicates an unwillingness to involve Sika again, presumably because the original Sika solution had failed. What is unclear is why they selected Aquarend whose solution also involved the application of render to what was known or believed to be poor concrete work.[24]Thus, all the basic facts which go at least generally to support the allegations of negligence set out in Paragraph 30.1 to 30.6 of the Particulars of Claim were known about by the Renwicks. They knew that there was a serious water and flooding problem, that the workmanship was extensively and culpably poor and that the Sika waterproofing had failed. I have formed the clear view that for the purposes of Section 14A of the Limitation Act the Renwicks must have had the requisite knowledge required for bringing an action for damages in respect of the relevant damage; certainly they had the right in 2002 to bring an action for damages. They had knowledge of the material facts about the damage, that damage being either the fact of serious water penetration or the financial loss of having a concrete structure which, not being waterproof, was substantially valueless, or both. They knew that they had employed Attwell as their structural engineer to give structural advice and to design the Garden Room so as to be fit for purpose and watertight and to inspect the works, as they have pleaded in Paragraph 8 of the Particulars of Claim. Whilst they may not have known as such that there were culpable design deficiencies such as the alleged failure to specify adequate reinforcement within the vertical components (as pleaded in Paragraph 30.11 of the Particulars of Claim), they must have known of sufficient material facts as to justify the institution of proceedings against Attwell in 2002 at the very least in relation to allegedly poor inspection by Attwell and for the arguably culpable endorsement by Attwell of the use of Sika rendering. In my view, to adopt the dictum of Lord Nicholls in the Haward case, they had sufficient knowledge to justify embarking on the preliminaries to the issue of a Claim, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence; there must have been more than mere suspicion. In other words, the Renwicks must have known enough for it to be reasonable to begin to investigate further. The very fact that Mrs Renwick talked in terms of legal proceedings against Attwell for the cost of total replacement of the Garden Room underlines this conclusion.[25]The one area of the claim against Attwell which does not automatically justify summary judgement against the Renwicks are the allegations contained in Paragraphs 30 .6 and 30.7 which involve allegedly culpable advice to the Renwicks that the problems should or could be remedied by applying internal render as opposed to replacing the defective concrete. One of the pleading problems facing the Renwicks is that they have pleaded in Paragraphs 18 to 20 of the Particulars of Claim that it was the Architect’s and Aquarend’s advice that further internal rendering be used. However, it may well be that an amendment, if supportable by a statement of truth, could overcome this lacuna. However, on that assumption, any negligent advice relating to the remedial solution actually adopted would arguably give rise to a different cause of action, albeit still in negligence. The damage from that breach of duty (if ever established) would not arise in 2002 but when damage flowing from that breach occurred, namely when the remedial solution failed. That damage might occur when more than insignificant water penetration first occurred, or if Section 14A was engaged again, when the Renwicks had the required knowledge for bringing an action in relation to this further and later type of damage. Decision[26]In my judgement, the Renwicks’ case, as presently pleaded, will fail on the grounds of Attwell’s limitation defence, save that its complaints that Attwell acted negligently in advising them to remedy the water penetration problems of late 2001 and early 2002 by way of internal render as opposed to replacing the defective concrete has a sufficiently arguable prospect of succeeding, subject to proof; in that regard alone there should not be summary judgement. It would follow that all the other complaints of causative breach of duty have no realistic prospect of success in the context of the limitation defence. If the Renwicks, upon the advice of their experts and on the other evidence available to them, are able by way of a Statement of Truth to support amendments to their Particulars of Claim which assert a factual basis for pleading the negligent advice relating to the remedial solution by way of internal render as opposed to replacement of the concrete work, together with an appropriate causation case, I would consider any such application on the handing down of this judgement. Their Counsel broadly hinted that such amendments might be applied for in this regard. Of course, it would be open to Attwell to argue that permission to amend should not be granted.