The Court of Appeal has set aside a High Court order striking out a third-party notice in a claim arising from the subsidence of a building.
The proceedings were brought by Thomas Greene and Katherine Greene against Triangle Developments Limited and George Wadding. The defendants sought to bring in Frank Fox and Associates, a firm of professional engineers, as a third party.
The High Court struck out the notice in March 2008 after finding that the defendants had not adequately explained the delay in obtaining an expert report. The defendants appealed. The appeal was transferred from the Supreme Court to the Court of Appeal in October 2014.
The Court of Appeal considered whether the notice had been served “as soon as is reasonably possible” under section 27(1)(b) of the Civil Liability Act 1961. The relevant period ran from delivery of the plaintiffs’ statement of claim on 5 May 2005 to service of the notice on the engineers on 9 March 2006. The court treated the March service as the relevant date for this statutory question, although the notice had not then been issued from the Central Office as required by court rules.
The defendants said the High Court had focused too narrowly on whether they had explained the time taken to obtain the report. The third party supported the High Court’s approach. The Court of Appeal held that a judge must consider both the explanation for any delay and, objectively, the whole circumstances and general progress of the case.
The report was received by the defendants’ solicitors on 9 December 2005. The Court of Appeal agreed that there was no full explanation for why it had not been obtained earlier, particularly as there was no evidence directly from Orr, the loss adjusters who had instructed the engineers. But it held that this lack of explanation did not end the assessment.
The court considered it reasonable to obtain an expert report before issuing a notice alleging professional negligence. It also took account of the time ordinarily needed to prepare and bring an application for leave to issue the notice, alongside the sequence of procedural steps in the case. It concluded that the defendants had objectively shown that service was as soon as reasonably possible.
The Court of Appeal allowed the appeal and set aside the High Court order. It did not determine the underlying subsidence claim or make a finding on the merits of the proposed professional negligence claim. Justice Peart agreed, adding that striking out the notice would be disproportionate in the circumstances.