The Court of Appeal has allowed an appeal by Liam Brandley and WJB Developments Limited against a High Court decision dismissing their claim as statute-barred, and remitted the case to the High Court.
The dispute concerns two houses at Williamstown, County Galway. Brandley, described in the judgment as the developer acting through his company, sued consulting engineer Hubert Deane and ground works contractor John Lohan over the houses’ foundations and construction. The claim alleged breach of contract and negligence.
The foundations were completed in March 2004. Deane certified compliance with planning permission and building regulations on 4 September that year. The houses were completed in January or February 2005, and Brandley observed cracks in each in December 2005.
The plaintiffs issued proceedings on 30 November 2010. Both defendants pleaded the Statute of Limitations. After an earlier application by Deane was refused because factual disputes could not be resolved on affidavit, both defendants applied to have the claim dismissed. The High Court granted their applications following a hearing with oral evidence on 16 April 2015, finding the claim out of time.
On appeal, the defendants argued that the limitation period began when the defective foundations were installed in March 2004. The plaintiffs accepted that the test was not when damage was discovered, but argued that a negligence claim requires actual loss or damage, which they said arose when the cracks appeared.
The Court of Appeal held that installing defective foundations did not, by itself, establish actionable damage in negligence. It found that the evidence was that damage occurred in December 2005, rather than that earlier damage was merely discovered then. As a result, the defendants had placed the start of the limitation period too early.
The court allowed the appeal and returned the matter to the High Court. It noted that the defendants had expressly admitted negligence and said the case appeared likely to proceed as an assessment of damages. However, that issue was not before the Court of Appeal, which left it for the High Court to decide if it arose. The appeal judgment did not itself award damages or determine their amount.