Success for Iain G Mitchell QC in time bar case

23/06/2010

A purchaser claimed to have bought, along with his wife, a house in Scotland in 1983, relying on a certificate produced by an architect that the house had been built according to the plans and relevant building standards. They moved in to the house and did not come to suspect that there were any defects in the house until about 1999 when various cracks appeared. They consulted a firm of solicitors with a view to raising an action against the architect. The solicitors undertook various discussions and negotiations with the architect's insurers but raised no court action, on the basis that under the short negative prescription they did not require to do so until 2004 (five years after the defects became apparent). In 2003 the insurers repudiated liability on the basis that the right of action had prescribed under the long negative prescription, 20 years having expired since they had purchased the house.

The purchaser, represented by Iain G. Mitchell QC, then sued the solicitor for negligence in failing timeously to sue the architect. At a legal debate, the solicitors' counsel sought to have the case dismissed on the basis that the period of the long negative prescription did not start to run until defects manifested themselves, a proposition for which there is both Scottish and English authority.

Mr Mitchell, however, successfully argued that this was not a dispute about defects in the house but, rather, about deficiencies in the architect's certificate and that there was a coincidence of damnum and iniuria at the point at which the purchasers, relying on the certificate, had concluded the contract to purchase the property for more than its true value (with the defects present). Accordingly, the 20 year period ran from that date, the claim against the architect had prescribed, and the claim against the solicitors was therefore legally relevant.

For the full judgement click here.