The High Court dismissed third-party proceedings brought by solicitors against architects, ruling that the claim was bound to fail because the alleged loss caused by the solicitors was not the “same damage” as the loss allegedly caused by the architects.
Mr Justice Clarke gave judgment on 1 June 2010 in proceedings brought by Edmond and Jacqueline Moloney against their former solicitors, Brendan Liddy and Nicholas Hughes, practising as Hughes and Liddy. The solicitors had joined Kenneth Meehan and JW Levins, practising as Meehan Levins Partnership and Meehan Levins Partnership Limited, as third parties and sought a contribution under section 21 of the Civil Liability Act 1961.
The underlying dispute concerned a dwelling house designed and built by architects and contractors engaged by the Moloneys around 1996. A plenary summons issued against the architects and contractors in January 2004, but was not served on the architects until an attempted service in 2008, when it was out of date and had not been renewed. In January 2010, the High Court set aside an order renewing that summons, finding the requirement for a good reason had not been met and that the balance of justice would not have favoured renewal. No appeal had been taken.
In the current proceedings, the Moloneys allege that the solicitors failed to act in time, causing their original claim to become statute-barred and depriving them of the opportunity to recover damages. The solicitors’ third-party claim alleged that the architects were concurrent wrongdoers responsible for the same damage. The architects argued that the loss attributed to the solicitors was the lost opportunity to pursue proceedings, while any liability on the architects’ part would concern defects in the house arising from their work.
The judge accepted that the damages in the two claims might be assessed by reference to overlapping considerations, including the potential value and risks of the original claim. But he held that this did not make the damage the same. A claim against solicitors for allowing a claim to become time-barred concerns the loss of an opportunity to bring proceedings and obtain a settlement or a decision on the merits. The original claim concerned alleged damage caused by the architects’ work. The distinction meant the contribution claim did not come within section 21.
The court did not decide whether the solicitors were negligent or whether the architects were liable for defects. It also did not determine whether the third-party proceedings amounted to an abuse of process. Justice Clarke said that question would require a detailed examination of circumstances and might be considered at trial, but it was unnecessary to resolve it on this application. He ordered the third-party proceedings dismissed.