Julian Holloway - A Court of Appeal decision on a negligence case may mean that contractors and architects are liable for claims they thought were dead and buried
A solicitor's negligence case may have profound consequences for the construction industry in general and its insurers in particular. Its decision may considerably enlarge the period of time over which contractors, architects and others within the industry can be held responsible for defects in buildings.

The brief facts of the case (Cave vs Robinson, Jarvis and Rolf) were that Cave engaged his solicitors to sell certain land. The land was jointly owned by two companies, one controlled by Cave and another by his friend, Cooper.

The solicitors were retained not only to sell the land to Hyde Securities but to ensure that Cave and Cooper separately acquired mooring rights for 100 years.

The transaction took place in March 1989.

In 1994, Hyde Securities went into receivership. The receivers contended that, because of negligent drafting on the part of the solicitors, Cave and Cooper did not enjoy mooring rights. Cave brought proceedings – but not until January 1998.

Usually, claims in negligence have to be brought within six years, or three years from the date when the claimant knew or ought to have known about the negligent act. Cave was outside these periods.

The Court of Appeal has largely rendered the distinction between ‘deliberate’ and ‘unintentional’ breaches of duty indistinguishable

However, time limits can be greatly extended where there is fraud or "deliberate concealment". Section 32 of the Limitation Act provides that where "any facts relevant to the plaintiffs right of action have been deliberately concealed … the period of limitation shall not begin to run until the plaintiffs discovered the fraud concealment or mistake". It goes on to say that the "deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts".

The solicitors did not deliberately draft the deed so as to prevent Cave and Cooper from obtaining the mooring rights. They did, however, deliberately draft the deed in the way they did, mistakenly believing this would confer the rights. The failure to confer the rights was clearly a breach of duty on the part of the solicitors. Further, that breach of duty was unlikely to be discovered for some time. Cave therefore said that all of this was enough to give him the benefit of the "deliberate concealment" provisions of the Limitation Act. The Court of Appeal agreed.

This case has effect only on claims in respect of "negligence", not contract. However, there will be plenty of circumstances in which an architect or a contractor may be liable because of negligence.

Say an architect deliberately draws up plans that it believes comply with fire regulations but which, in fact, do not. If a fire breaks out in the premises 30 years after practical completion, and the cause of the extent of the fire is traced back to inadequate fire-stopping details, and if a neighbouring building is damaged, the owner of the neighbouring building may be entitled to bring proceedings against the architect even after all that time.

The same applies to contractors. If a contractor has to supply and install class 0 materials to comply with building and fire regulations, and the contractor deliberately supplies materials that it believes are Class 0 but that in fact are not, then, if that fact is unlikely to be discovered for some time, this also counts as "deliberate concealment".