Adrian Bingham is a partner and Olivia Barrett is a trainee solicitor at Collyer Bristow
There has long been recognition that claimants’ rights of action should not remain open indefinitely. The first statute to address this systematically was in 1623, and its six-year limitation period for contracts and actions of tort remained remarkably durable. By the time the legislation was repealed in 1986, the six-year period, with 12 years for contracts under seal, had become thoroughly enshrined.
“Successfully claiming under the legislation may in practice be vastly challenging”
The Latent Damage Act 1986 opened the door to longer limitation periods by introducing a 15-year-long stop for non-personal injury negligence claims. But the Building Safety Act 2022 (BSA) goes a lot further with 30-year periods, raising fundamental issues regarding the balance of claimants’ and defendants’ rights.
The 30-year periods have clearly arisen from legislators’ understandable reaction of horror to the 2017 Grenfell Tower fire. The tragedy also led to concerns over the need to protect leaseholders from the cost of remediating historical building-safety defects.
There are two BSA provisions that require consideration:
- Section 4B(4) of the Defective Premises Act 1972 (introduced by s.135 of the BSA), which, in brief, allows claimants 30 years to bring claims arising before 28 June 2022 against “a person taking on work for or in connection with the provision of a dwelling” for breach of the duty to “see that the work [is] done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed”.
- Section 10B(2) of the Defective Premises Act 1972 (introduced by s.149 of the BSA), which, in brief, allows claimants 30 years to bring claims arising before 28 June 2022 against manufacturers and suppliers of defective or misleadingly described cladding products which, when installed, render a dwelling unfit for habitation.
There are considerable practical, professional and personal issues arising from limitation periods of such length. These considerations appear to have been recognised in some measure by Parliament in s.135(5) of the BSA, which states that the court must dismiss a s.4B(4) claim if it is necessary to avoid breaching a defendant’s human rights.
In particular, Article 6 of the European Convention on Human Rights would be relevant to this. It states: “In the determination of … civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time.” Therefore, perhaps somewhat curiously, human rights defences are available to professionals and contractors accused of negligent work in relation to a dwelling, but not to manufacturers and suppliers of cladding materials.
Practicality in question
So what are the problems of bringing claims that are up to 30 years old?
- Very few people will have a clear recollection of the projects they were dealing with decades ago. Also, they would either have been involved at a far more junior level than their current status, or they might be retired altogether. Not only do memories fade, but a witness of advanced years may also have serious cognition issues.
- There will be an inevitable tendency to apply hindsight as to what standard of care should have been exercised at the time in question. This temptation should of course be resisted by claimants, but it may not be.
- The routine destruction of paper and electronic records after a few years, and/or the inaccessibility in many cases of the latter due to changes in IT systems, will be a challenge to whichever party has the burden of proof.
- It may not be easy to locate and interpret the technical standards that applied at the material time, many of which may have been far more broad-brush than current standards. The same is likely to apply to construction product data.
- If an expert witness was not in practice when the alleged negligence occurred, or was very junior at the time, then opponents may well attack their evidence on the basis of lack of direct experience of the matters in issue.
However well-intentioned the legislators were in enacting retrospective 30-year time limits, it can be argued that doing so has gone against several centuries of history and principle. Successfully claiming under the legislation may in practice be vastly challenging, and satellite human rights litigation may well be one of the consequences of the reforms.
