Vinci Construction UK Limited v Eastwood and Partners (Consulting Engineers) Limited & Anor

On a summary judgment application, the court must decide whether the claim has a realistic, rather than fanciful, prospect of success. It must avoid conducting a mini-trial and should consider evidence reasonably expected to be available at trial. A short point of law may be decided summarily where the evidence is sufficient.

For negligence claims involving defective construction, limitation depends on the proper characterisation of the loss. Physical damage generally accrues when the damage occurs. Economic loss caused by reliance on negligent services accrues when the claimant suffers measurable loss, and an inherent design defect may cause economic loss on completion. Where attribution of damage remains factually uncertain, summary judgment is inappropriate.

Vinci claimed approximately £2.5 million from Eastwood and Snowden following adjudication decisions concerning defects in a warehouse floor. Snowden brought an additional claim against GHW, the specialist floor designer, seeking an indemnity and/or contribution for alleged negligent design and breach of contract.

GHW applied for reverse summary judgment on the basis that Snowden’s claims were statute-barred, and for strike-out of the contribution claim under the Civil Liability (Contribution) Act 1978. The parties agreed that the contractual claim was time-barred. The central issues were whether Snowden’s negligence claim was barred under sections 2 or 14 A of the Limitation Act 1980, and whether the pleaded documents disclosed a valid contribution claim.

1. Application dismissed in part. Snowden’s contractual claim against GHW was bound to fail because it was statute-barred and was struck out. GHW’s application for summary judgment on the negligence claim and strike-out of the contribution claim was dismissed.

2. Under CPR 24.2, the question is whether the claim has a realistic prospect of success. The court must not conduct a mini-trial. It must consider both the evidence before it and evidence reasonably expected to be available at trial. Where the evidence is sufficient to determine a short point of law or construction, the court should decide it summarily.

3. The Court of Appeal’s analysis in URS Corporation Limited v BDW Trading Limited [2023] EWCA Civ 772 identified the relevant distinction. Negligence requires actionable damage, which may be physical damage or economic loss. Physical damage ordinarily gives rise to a cause of action when it occurs. Economic loss caused by reliance on negligent advice or services accrues when the claimant incurs measurable loss. Where a structure contains an inherent design defect without immediate physical damage, the cause of action accrues at the latest on completion, when the claimant has a defective asset.

4. Pirelli General Cable Works Limited v Oscar Faber & Partners [1983] 2 AC 1 (HL) remains good law for cases involving physical damage, although its scope requires careful consideration in light of authorities recognising pure economic loss from inherent design defects.

5. The documents showed that the floor had suffered material physical damage by March or April 2015 at the latest. Accordingly, any negligence cause of action accrued more than six years before the effective issue date of 7 May 2021 and was prima facie barred under section 2 of the Limitation Act 1980.

6. Section 14 A potentially provides a later limitation period where the claimant first acquired the requisite knowledge within three years before issue. The claimant must plead and prove the relevant date. Knowledge includes facts showing sufficiently serious damage and a real possibility that the damage was attributable to the alleged act or omission. The evidence did not establish conclusively when Snowden acquired that attribution knowledge. Determining the issue would require a mini-trial on factual and expert evidence, so Snowden had a real prospect of succeeding.

7. For strike-out under CPR 3.4(2)(a), the pleaded facts are assumed to be true and the court must be certain that the claim is bound to fail. Reading the Additional Claim Form and Part 20 Particulars together, it was reasonably clear that Snowden pleaded negligence and a contribution claim. The parties were given an opportunity to plead their contribution and indemnity cases fully.

First-instance decision. No prior appellate decision was stated in the judgment.