In the spotlight: cladding claims and limitation

Posted: 18/08/2020

Introduction

One of the fallouts from the tragic fire at Grenfell Tower in June 2017 is that many building owners across the UK are having to look very closely at the safety (in the event of fire) of the external wall cladding systems on their buildings. This is leading to lots of owners identifying the need to undertake very costly and disruptive remedial works.

In these circumstances, one option for building owners is to investigate whether they can seek legal redress from the original project team responsible for designing and undertaking the cladding works (whether as part of the building’s construction or through a subsequent refurbishment). However, often these works occurred a significant number of years ago and owners are therefore finding (and in the future will increasingly find) themselves having to grapple with the complicated question of whether any such claims are still in time or does the original project team have a full limitation defence.

In recent months, the Technology and Construction Court has considered limitation issues in cladding claims in the context of two applications by developers seeking summary judgment against building owners on the contention that the owners’ claims were time barred.

Recent cases

In the first of the cases (Sportcity v Countryside Properties [2020] EWHC 1591 (TCC)), the developer’s application was successful. The court held that the owner had no realistic prospect of being able to defeat the defendant’s case that the pleaded allegations under the Defective Premises Act 1972 in respect of the original project works were out of time (and also that no relevant duty was owed by the developer in tort or under the building’s sub-leases).  

However, in the second case (RG Securities v R Maskell [2020] EWHC 1646 (TCC)), the developer was unsuccessful and the court dismissed the summary judgment application. Interestingly, it did so on the basis that there was a realistic prospect of the owner proving that the developer deliberately concealed (from the owner) facts relevant to its cause of action. This means that the owner may be able to make use of a relatively little known part of the Limitation Act that postpones the start of the limitation period in the event of proven concealment; the effect of which would be to deprive the developer of a limitation defence.

You can read more detailed case summaries for each of these decisions by clicking on the case names above. Both decisions are well worth noting by all those who find (or may find) themselves embroiled in these types of cladding claims.

Conclusion

These two cases are another timely reminder of the spectre of limitation issues in cladding and other fire safety claims. Moreover, these issues are often not straightforward; in addition to involving complicated legal issues, they also entail the often difficult task of untangling the relevant facts. As the court pointed out in RG Securities v R Maskell: “Limitation arguments such as these are particularly fact sensitive. The cladding and fire issues such as the ones that arise in this case are very factually complex.”

The cases therefore reinforce the crucial importance of building owners with unsafe external cladding systems (and/or other fire safety issues) not delaying in investigating the feasibility of legal claims against the original project team and, if necessary, taking immediate steps to protect their position on limitation.

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