Combustible Cladding'limitation Expiry Is No Excuse For Inadequate Particulars (Naylor V Roamquest)

• Published date: 11 May 2021
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Bryan Cave Leighton Paisner LLP
• Author: Ms Alexandra Clough

Summary

In Naylor v Roamquest Ltd [2021] EWHC 567 (TCC), the TCC reiterated that an impending limitation expiry does not relieve claimants of their burden of pleading and establishing a positive case. In this casenote, first published by LexisPSL, Alexandra Clough and Alex Ottaway consider the practical implications of this judgment.

Naylor v Roamquest Ltd [2021] EWHC 567 (TCC)

Construction analysis: The Technology and Construction Court (TCC) reiterated that an impending limitation expiry does not relieve claimants of their burden of pleading and establishing a positive case. In this combustible cladding dispute, the leaseholder claimants made allegations of defects that were not based on inspections or opening up carried out by appropriately qualified experts and were not the subject of an expert report. The leaseholders were permitted to amend their pleadings so as to identify precisely the nature, extent and location of the alleged defects. However, given the lack of investigation, they may struggle to do so, in which case parts of their claim might become barred. The decision underscores the need for claimants and their legal representatives to engage early and manage limitation periods appropriately. The decision also comments on the measure of damages (remedial costs) where the claimants constitute a minority of leaseholders.

Written by Alexandra Clough and Alex Ottaway, senior associate (Australian solicitor) (Alex Ottaway has now left Bryan Cave Leighton Paisner LLP).

What are the practical implications of this case?

Statement of Case

When approaching the expiry of a limitation period, it is good practice for the claimant to invite the defendant to enter into a standstill agreement. If a standstill cannot be agreed, the claimant may need to issue a protective Claim Form. However, the authorities make clear that, if the claimant is unable to set out the basis of its claim in at least a rudimentary way, issuing a protective Claim Form may be an abuse of process.

Combustible cladding claims invariably require the works to be opened up and inspected, which requires time, resource and planning. It is essential that, at the earliest opportunity'well before limitation expiry'claimants instruct appropriately qualified experts to inspect the works and produce a detailed schedule of defects and an expert report. A failure to do so could result in strike‑out or summary judgment, or other orders that may have a barring effect.

Measure of damages

Defects...