Oxford Architects Partnership v Cheltenham Ladies College

A contractual time bar may operate in addition to statutory limitation. It cannot extend the period available under the Limitation Act 1980 or redefine when a cause of action accrued unless expressed in clear terms. An architect’s continuing duties during construction do not create one continually accruing cause of action. Separate causes of action may arise from the original design, a later failure to review it, and other services. Contract claims accrue on breach. Negligence claims accrue when relevant damage occurs, which may be physical damage during construction. Each cause of action must therefore be tested separately against the applicable statutory period.

The claimant architects appealed under section 69 of the Arbitration Act 1996 against a preliminary award in which the arbitrator held that the defendant college’s claims were not statute barred. The claims concerned basement tanking, fire doors and alleged failures to provide information to mechanical and electrical consultants.

The engagement contained a six-year contractual restriction running from Practical Completion. The court had to determine its relationship with the Limitation Act 1980, identify when the relevant contractual and tortious causes of action accrued, and decide which claims remained capable of proceeding.

1. The appeal succeeded to the extent that the arbitrator’s general conclusion was displaced. Article 5 of the engagement imposed an additional contractual time limit. It did not exclude statutory limitation defences, define the accrual date for the purposes of the Limitation Act 1980, or permit proceedings after they had become statute barred. Clear words would have been required to exclude the statutory defences.

2. A contractual cause of action ordinarily accrues on breach. A negligence cause of action accrues when breach of duty causes relevant damage. The court distinguished a contractor’s obligation to carry out and complete works from an architect’s professional engagement. Where the engagement includes services during construction, an architect may have a continuing duty to review the design where there is objectively good reason to do so, applying the approach in New Islington and Hackney Housing Association Limited v Pollard Thomas and Edward Limited [2001] BLR 74.

3. The continuing duty does not produce one single, continually accruing cause of action. A failure to provide a proper original design is distinct from a later failure properly to review that design. The causes of action accrue at different times.

4. Following Pirelli General Cable Works Limited v Oscar Faber & Partners [1983] 2 AC 1 and Abbott v Will Gannon & Smith Ltd [2005] BLR 195, relevant physical damage could occur during construction. The basement tanking and fire-door claims were statute barred insofar as the relevant contractual breach, or relevant physical damage in negligence, occurred on or before 24 November 1998. Any later causes of action required determination by the arbitrator.

5. The original fire-door design claim was statute barred in contract by 11 July 1997 and in negligence by 3 November 1998. The contractual claim concerning the November 1998 design review accrued on 23 November 1998. The ZBP claim was statute barred in both contract and negligence because the breach and the relevant liability for additional fees arose well before 24 November 1998.

• Arbitration: The arbitrator’s preliminary award dated 26 June 2006 held that the pleaded claims were not statute barred.
• High Court (Technology and Construction Court): On an appeal under section 69 of the Arbitration Act 1996, the court held that the claims were statute barred to the extent identified in the judgment, leaving factual issues concerning any later-accruing causes of action to the arbitrator.