07 January 2019

Time limits for starting court proceedings in construction negligence claims

Brandley and WJB Developments Limited v Hubert Deane T/A Hubert Deane & Associates and John Lohan T/A John Lohan Ground Works Contractors [2017] IESC 83 (“Brandley v Deane and Lohan”)

The Irish Supreme Court has clarified when a limitation period starts to run. This is important; if you do not start court proceedings within the time limit, you will be debarred from pursuing your claim.

What happened in the case?

  • Brandley engaged Deane and Lohan as consulting engineers and ground works contractor, respectively, in the construction of three dwellings.
  • Lohan completed the foundations in March 2004 and Deane issued a certificate of compliance in September 2004.
  • In December 2005 cracks were observed as a result of defective foundations.
  • On 30 November 2010 Brandley issued court proceedings.
  • Both Deane and Lohan admitted negligence, but claimed the proceedings should be dismissed on the basis that the limitation period had expired, in other words the claim was ‘statute barred’ because it was more than six years since the breach (in 2004).
  • The issue therefore was whether the limitation began to run from:

(a)    the date the foundations were installed (for Lohan), or the date of certification (for Deane), meaning the claim was time barred; or
(b)    the date of the damage, meaning the claim was not time barred.

  • The High Court found the former and the Court of Appeal, the latter.
  • Deane and Lohan appealed the decision to the Supreme Court.

Decision

The Supreme Court decided the claim was not statute barred; Brandley had started the proceedings within the time limit. The basis of the decision was as follows:

1.    There were five possible trigger events for the limitation which were:

  • The date of the wrongful act
  • The date on which the damage occurred
  • The date on which the damage became manifest (i.e. damage was capable of being discovered and proved)
  • The date on which damage could have been discovered 
  • The date on which the damage was actually discovered

2.    The Court decided that the trigger event was when the cracks appeared in 2005, as the damage was manifest when it was capable of being discovered, regardless of whether it had or ought to have been discovered.

It must be noted that a separate time limit applies to contract claims; this is typically six years from the breach (or 12 years if the contract is a deed).

Conclusion

This case emphasises that you should immediately seek legal advice on a cautionary basis, as soon as you discover damage or defects.

For more information or advice, contact a member of our Construction team.