Some Topical Issues In Construction Law

Author:Mr Stephen O'Sullivan
Profession:Stephen O'Sullivan, Barrister
 
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Construction litigation is complex. Not only are lawyers heavily reliant on expert reports but there are legal defences that will be raised which must be overcome before those reports even become relevant. Firstly, it might be argued that the claim is statute barred. Proceedings are often issued after 6 years of the building works having been completed or the certificate of compliance from the architect having been signed. Therefore the issue of latent defects arises. Secondly, the defence might be raised that there is no liability for economic loss in the law of negligence. If that defence is successful and the plaintiff has no contract with that defendant, the case will not succeed. Thirdly, some defendants might be insured and other defendants might not. The insured defendants might argue they are not concurrent wrongdoers with the other defendants and seek to prove they are only liable for a portion of the damage that ensued. Lastly, even where a plaintiff succeeds in getting a judgement against the defendant, in the current environment defendant may not be a mark for damages. The question arises whether the plaintiff can pursue that defendant's insurance policy.

The Statute of Limitations

In a tort claim or a breach of contract claim outside of personal injury, the time limit is generally 6 years from the date the cause of action accrued and there is no extension for date of knowledge. In the (English) Latent Damage Act 1986 the limitation period is amended by providing for an alternative 3 year limit running from the date of knowledge in the case of latent damage but no such amendment has been made here. No similar provision exists in Irish law other than for claims for personal injury or product liability.

In Irish Equine Foundation Ltd. v. Robinson [1999] 2 IR 442 the plaintiff's claim for negligence and breach of contract against an architect and engineer for a defective roof was struck out as being outside the limitation period. The court held that time ran from when the roof was constructed on the basis that if the plaintiff had used an expert to inspect it on completion the defects would have been discovered, even though water only leaked through 4 years after completion.

In Pirelli General Cable Works v. Faber [1983] 2 AC 1 the plaintiff sued for negligent design of a factory chimney which was built in 1969. Cracks developed in 1970, which cracks could not have been discovered with reasonable diligence until 1972 and were not...

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