Limitation of Actions Consultation - Law Commission

(2) the identity of the defendant; and
(3) 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. 203
3.95 Knowledge of the law is irrelevant. 204
Constructive, as well as actual, knowledge of
a fact counts. 205
Although set out in a slightly different way the definition of the
starting date (including the four key types of fact) is very similar to the date of
knowledge for the purposes of personal injuries actions, as provided in section 14
of the 1980 Act, and reference can be made to the personal injury section above
for a full discussion of the ingredients of the definition. 206
3.96 Under section 14A(7) the damage must be sufficiently serious to justify legal
action. There have been conflicting decisions on the meaning, in this context, of
“the damage”. In Horbury v Craig Hall & Rutley 207
the plaintiff brought a property
in 1980 in reliance on a surveyor’s report. The report negligently failed to reveal a
number of defects in the property. The plaintiff became aware of some of the
defects including an unsafe chimney (which could have been corrected for £132)
in 1982. In 1985 she became aware of further defects (requiring extensive
rebuilding of the house). In 1988 she sued the surveyors. It was held that the
plaintiff had a single cause of action in respect of the report and that “the
damage”, as referred to in section 14A, meant all the damage suffered by the
plaintiff in consequence of her reliance on that report. The discovery of the unsafe
chimney was sufficiently serious to cause a reasonable person to issue proceedings
(given the hypothetical defendant who did not dispute liability and was able to
satisfy a judgment), and that time started to run against the plaintiff from that
point. In consequence the plaintiff’s cause of action was time-barred.
3.97 In contrast, in Felton v Gaskill Osbourne & Co 208
it was held that “damage” in
section 14A(7) meant the particular head of damages in respect of which the
plaintiff was seeking to claim damages, not damages in general. These
proceedings also concerned a negligent surveyor’s report, which failed to refer to
four defects in the property. The fact that the plaintiff had been aware of two of
the minor defects not referred to and had decided that they were tolerable where
another person might have instituted proceedings against the surveyors for
negligence in respect of those failures did not mean that the plaintiff was
precluded from suing the surveyors in respect of the more serious defects when
they came to his attention. Time did not start to run in respect of all the damage
suffered by the plaintiff when he was aware of the first damage he suffered.
203 See sections 14A(8) and 14A(6)(b).
204 Section 14A(9).
205 Section 14A(10).
206 See paras 3.38 - 3.65 above. Note, however, that the judicial interpretation of s 14 may be
influenced by the discretion to disapply the basic time-limits, whereas there is no such
discretion in relation to s 14A.
207 [1991] CIIL 692 (Judge Bowsher QC, sitting as official referee).
208 [1993] 2 EGLR 176.
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