An anomaly in the law means that a claim brought for breach of contract has a different time period from a claim brought under the law of tort (negligence). Mark Cornell, litigation and dispute resolution solicitor (and Managing Partner) discusses.
The case of Robinson v P.E. Jones (Contractors) Limited heard in January of this year was good news for contractors but not such good news for consultants. The Claimant (who was the employer) issued proceedings against his contractor for breach of contract in respect of defective gas fire flues. The problem for the Claimant was that the work had been completed in 1992 but he did not issue proceedings until 2006.
The “limitation” period for bringing a claim for breach of contract is at most 12 years and most usually 6 years. However, under the law of tort, a negligence claim can be brought within 3 years of discovering the potential claim (subject to a 15 year long stop). The contract provided that the contractor could not be liable under a claim in tort and the court upheld this term. However, a more interesting point also emerged. The court went on to say that regardless of the contract term, it did not feel that a duty of care (that is a pre requisite of a claim in negligence) was owed by the contractor to the client. The court said it was a “normal contract” where the contractor would build to an agreed specification and give all necessary warranties under the contract. This is a strict obligation but it arises under the contract and hence a different limitation period applies.
As a designer or engineer, a consultant will owe such a duty of care to the client. This means that more than ever, consultants will be in the line of fire and should have terms of engagement in place that create time limits in both contract and tort.
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