| Date | 14 May 1997 |
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| Judgment | Blaenau Gwent Borough Council -v- Robinson Jones Partnership and Lock CE Ltd in Administration ORB, 27 March 1997, 17 BLISS 9 |
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| The Issue | Limitation Act 1980. Continuing duty of engineer to advise client on its right to sue. |
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| Implication |
There is no obvious duty upon an engineer to advise its client of the potential right to sue him, such that this might circumvent a limitation defence. |
printA contractor may be liable for defective work under the express terms of a guarantee, warranty or indemnity for many years. In the absence of such undertakings or express wording to the contrary however, a contractor's liability for a failure to complete the works in accordance with the contract continues until barred by the Limitation Act 1980. This extends for a period of six years for a simple contract and twelve years for a deed from the date when the cause of action against the contractor arose. In the case of building and civil engineering contracts a cause of action for failure to construct in accordance with the contract normally arises at practical completion. Where the complaint is for failure to comply with defects liability obligations the cause of action will normally arise at such later date after practical completion as the contract describes for carrying out those obligations. If defects are concealed by the contractor, this may result in an extension of the limitation period. Section 32 of the Limitation Act 1980 provides that where the action is based upon the fraud of the defendant or any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant, the period of limitation does not begin to run until the plaintiff has discovered the fraud or concealment, or could, with reasonable diligence, have discovered it. Where there is a defects clause and at the end of the defects liability period a binding and conclusive final certificate of satisfaction is given by the architect or engineer then, in the absence of fraud or other special circumstances, the contractor's liability in contract for any defects which may appear thereafter will normally come to an end. This was the finding in the case of Crown Estate Commissioners -v- John Mowlem in the Court of Appeal in 1994, though it was not the intention of the drafters of the JCT Standard Forms of Agreement that the final certificate issued under that form should have that effect. The question of an engineer's continuing duty to its client and the application of the Limitation Act was considered in the case of Blaenau Gwent Borough Council -v- Robinson Jones Partnership on 27th March 1997. The Borough Council had inherited a scheme to construct a lake in one of its parks and Robinson Jones were engaged to act as consulting engineer in connection with the project. The work was undertaken between May and October 1981. The Borough Council complained that the liner was not watertight and consequently the lake was losing excessive water. A writ was issued in March 1995 against both the engineer and the contractor alleging that they were in breach of contract and in breach of common law duties of care. Not surprisingly this was met with a limitation defence since almost fourteen years had passed since completion of the works. The Borough Council countered this by seeking to rely upon Sections 32 and 14a of the Limitation Act 1980 alleging deliberate concealment. This was denied by the defendants who maintained that all relevant matters were revealed to and known by the plaintiff by August 1983, or should have been known within six months of the water losses by which time the Borough Council should have sought expert advice. The Borough Council's pleaded case was complex. They claimed losses from breach of an obligation to advise, inform or warn them in time as to the existence of a right to sue. Whilst the Court was ready to accept that the defendants owed duties to take reasonable care in or about their administration of the main contract, these were not duties which would circumvent a limitation defence. Similarly, where the engineer had prepared a final report concerning the condition of the lake, there was no obvious obligation to draw attention to the client's rights to sue. Dismissing this element the Judge said "That an engineer has duties to report on the performance and potential liability of the contractor is a familiar proposition, but if there is to be the much more debatable allegation that the engineer has a duty to advise or warn the employer there might be a right of action against himself, then that allegation must be clearly and explicitly made and the grounds pleaded". The Borough Council would not be permitted to make the necessary amendments to its case which therefore failed on these critical issues.
CJ-9719
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