Citation:
(EX TEMPORE) The court refused to strike out or grant summary judgment on claims against a building contractor for breach of contract and breach of duty of care in respect of its roofing works at a school. The multi-academy trust had a real prospect of defeating a limitation period argument on the basis that it had issued the claims within six years from the date of completion.
Gaynor Chambers represented the successful Claimant in opposing applications for strike-out and summary judgment in respect of claims against a building contractor for breach of contract and breach of duty of care arising from its roofing works at a school.
Background
The Defendant sought to strike out claims for breach of contract and breach of duty of care, or alternatively to obtain summary judgment against the Claimant.
Endeavour was a multi-academy trust providing education facilities, including a school in Greenwich which was the subject matter of the present claim (“the school”). Management of the school was transferred to Endeavour on 1 April 2021.
Endeavour alleged that certain asbestos and roofing works were carried out at the school pursuant to an informal contract entered into in 2016. Endeavour said that these works were completed in or around September 2016.
On 5 May 2017, Pullman submitted a quotation for further works at the school in the total amount of £364,000. This quotation included asbestos removal, electrical works, suspended ceiling works and general works, as well as the roof works which formed the subject matter of the present claim.
The quotation provided, in relation to the roof works, that a “… minimum 15-year guarantee [was] required”. As to timing, the quotation stated:
All works to be completed in normal working hours during the school summer break. All works to be completed in this period excluding roof works which will continue for a further three weeks.
Endeavour said that this quotation was accepted and gave rise to a variation of the 2016 contract, such that there was single contract between the parties. Pullman disputed this analysis but accept that, for the purposes of the application, it could be assumed that there was a single contract between the parties.
The further works set out in the May 2017 quotation were carried out in the summer of 2017. There was a dispute between the parties as to when those works were completed. Endeavour argued that the works were carried out defectively by Pullman. It said that by 2021 there had been serious water ingress causing significant damage. Endeavour further alleged that the roof had to be completely replaced in 2021-2022 at a cost of circa £800,000.
Proceedings were issued on 6 September 2023. On any view, that date was close to the expiry of the limitation period, which gave rise to the present application.
Decision (Adrian Williamson KC)
Application for summary judgment dismissed.
- Should the claim be struck out? The Defendant argued that the Amended Particulars of Claim (“APoC”) were obviously brought too late and must fail on limitation grounds. The court found that this was not obvious and held that, even if there were a limitation defence, that was a matter for CPR Part 24, not for striking out under CPR Part 3.4(2)(a). The court therefore dismissed the strike-out application.
- The contractual claim: In light of the contractual provisions agreed between the parties, the court held that the completion date for the 2017 works was, at least reasonably arguably, 25 September 2017. Endeavour also had real prospects of showing that a claim of this kind in contract did not accrue until the agreed completion date of the relevant works. If so, Endeavour had six years from 25 September 2017 to bring the claim, and the present proceedings were commenced in time. On that basis, Endeavour had a realistic and not fanciful prospect of defeating the limitation defence advanced by Pullman in relation to the contractual claim.
- The tortious claim: The court found that Endeavour had real and not fanciful prospects of establishing that the contract works were handed over/completed at the end of September 2017. Accordingly, there were real prospects of showing that the claim in tort had been brought in time.
- The breach of warranty claim: The warranty claim, as pleaded, had real prospects of success. It also provided “some other compelling reason why the case or issue should be disposed of at a trial” within the meaning of CPR Part 24, as it might provide (as contingently pleaded) an answer to any limitation difficulties arising in relation to the contractual and tortious claims.
Representation
Gaynor Chambers (Keating Chambers) for the Claimant, instructed by Palmers Solicitors.
Lucie Briggs (Atkin Chambers) for the Defendant, instructed by DAC Beachcroft LLP.
