A Stadium and its Defects: Liberty, Loss and the Limitation Period

Philip Britton

June 2019

A paper based on the highly commended entry in the Hudson essay competition 2018.

Philip Britton poses the question: when the owner of a commercial building rectifies problems which appear to derive from the period of its construction, what obstacles lie in the way of successfully claiming the cost of this work from the original construction parties, if the owner is not also the construction employer? The paper focuses on the first judgment of the TCC in Swansea Stadium Management Co Ltd v City & County of Swansea and the author examines the two main issues arising: (1) Does the would-be claimant have a cause of action against at least one solvent (or insured) defendant?; (2) Where litigation is considered long after construction took place but where previously-latent problems have become obvious, is it already too late to start legal action? In April 2019 the TCC gave judgment on the merits in the Swanseacase; the author has added a postscript analysing this latest stage in the dispute.

1 Introduction - 2 The litigation: background -3 Issue 1: A third party's right of action- Contract: at common law- Tort: at common law - Statutory intervention - Enter the collateral warranty- 4 Limitation: background - 5 Issue 2: limitation and the stadium project - Approach I: For breaches committed before Practical Completion, time runs from the moment that work done does not conform with the contract's requirements' - Approach II: For breaches occurring before Practical Completion, time runs from Practical Completion' - Approach III: Even for breaches occurring before Practical Completion, time runs only from the end of the Defects Liability process' - Summary and practical consequences - 6 Conclusions: is justice served? - Fairness and limitation - Law reform? - The outcome in the case - An alternative approach - 7 Postscript: judgment on the merits - SSMC's claim against D1(the local authority) under its lease - SSMC's claim against D1(the local authority) for failure to enforce its rights against D2under the construction contract - SSMC's cut-down claim against D2(the main contractor) - Other issues - And finally

The author: Philip Britton LLB BCL has been Director, then Visiting Professor, Centre of Construction Law & Dispute Resolution, Dickson Poon School of Law, King's College London. He has also been a Senior Fellow, Melbourne Law School and was appointed an Honorary Member of the SCL in 2019. Email: philip@linden60.co.uk.

Text: 24 pages