Causes of Action

KIM FRANKLIN
The courts like certainty and finality. Various procedural rules have been devised to ensure that a
claim includes all causes of action relied upon so that they can be dealt with together, once and for
all. There is no magic in a cause of action; it is simply the facts which entitle one person to obtain
a legal remedy against another. In an ideal world you have facts which give rise to a breach of
contract in respect of which a claim is made, decided by the court and, if the claimant is lucky,
damages awarded. But of course, the world of construction disputes is not an ideal one. In one
case the employer claimed and recovered damages for breach of a contract to build a bungalow ‘in
a good and workmanlike manner’. Ten months later, realising that he may have been onto a good
thing, he brought an identical claim, adding the words ‘with proper materials’ and recovered more
money. The Court of Appeal overturned the second judgment on the grounds that the claimant
was not entitled to have two shots at what was in essence, same claim.
The defendant architects in the recent case of Mantegazza v Neil Holland Architects Ltd (Judgment
11.5.2006) similarly found themselves presented with two claims arising out of the same contract
for an extension to the claimants’ home. Before the work was completed a claim was brought
against the architects for approving defective work, including the pointing of the brickwork. The
dispute was ultimately resolved when the claimants accepted £35,000, ‘in full and final settlement
of all claims made’.
Two years later the claimants discovered that the limestone mortar used for the extension was
unsuitable and had lead to erosion of parts of the building. The remedial costs were likely to run
into six figures. They brought a second claim against the architects.

The architects applied to the court to strike out the new claim on the grounds that it was essentially
a rehash of the old claim which had been concluded with a settlement agreement. They argued
that the settlement prevented the claimants from ‘twice vexing’ the court with the same problem
and that, in any event, the problem ought to have been raised first time around. The claimants
were not entitled to a second bite at the cherry.

The court rejected these arguments and allowed the claim to stand. The judge said that the
settlement related only to ‘all claims made’ and not to potential, future claims. He further
concluded that although both claims concerned the mortar, defective re-pointing and the use of an
inappropriate mortar were entirely different and distinct allegations and not the same claim at all.
And the moral of this tale? Claimants - don’t rush to sue the team. See what defects manifest
themselves within the limitation period. Defendants - use one of the lawyers’ time hallowed
formulae to encompass both present and future claims when compromising early disputes.