Date Of Knowledge Clarification - UK Insurance Ltd v (1) Carillion Specialist Services Ltd (2) Construction Auditing Services Ltd [2019] EWHC 1588 (TCC)

UK Insurance Ltd v (1) Carillion Specialist Services Ltd (2) Construction Auditing Services Ltd [2019] EWHC 1588 (TCC)

Facts

The claim arose from a claim on the Claimant's Latent Defects Policy. Prior to issuing the policy, the Claimant instructed the First Defendant (which subsequently went into Liquidation) to undertake surveying services in order to certify that the construction works in question were undertaken with reasonable skill and care.

The Second Defendant, in its capacity as surveyor, signed a certificate of approval on 15 December 2003, to confirm that the site had been inspected and that the works were constructed in accordance with accepted building practice. The Claimant alleged that the certificate of approval had been negligently issued by the Second Defendant and that it would never have entered into the policy had the Defendants properly inspected the works with reasonable skill and care.

No claim in contract was advanced and the Claimant conceded that primary limitation period in tort had expired. The only remedy available to the Claimant, therefore, was to rely on section 14A of the Act. The Claimant argued that it had acquired the relevant knowledge for the purposes of the Act no earlier than 30 May 2015, when a secondary inspection revealed the extent of the design flaws, so that the claim, which was issued on 14 September 2016, was brought in time.

The issue raised before the Court, for the purposes of the summary judgment application, was whether the Claimant's case, which relied entirely on section 14A of the Act, had a real prospect of success. The Second Defendant contended that the Claimant had the requisite knowledge before 14 September 2013 whereas the Claimant submitted to the contrary.

Decision

Sitting as a Judge in the TCC, Alexander Nissen QC, concluded that the Claimant's claim was time barred. The Judge held that the Claimant had the necessary broad knowledge by June 2013 when it received a report from inspectors concluding that there was an insufficiency of movement joists. The inspectors told the Claimant that the cracking was a construction issue, and the Claimant did not need to...