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Claims: Ensuring A Smooth Take Off And Avoiding The Time Bar Risk

Claims: Ensuring A Smooth Take Off And Avoiding The Time Bar Risk

Shetland Islands Council have lost their appeal after pursuing a technical legal argument which the Inner House described as ‘contrived’, in an attempt to avoid a £14.2M claim on a time bar argument. Highlands and Islands Airports raised a court action in 2011 asking the court to declare that the Council were liable for defective design and supervision resulting in a costly remedial scheme at Sumburgh Airport. Under time bar rules, proceedings must be raised within 5 years to avoid a claim becoming time barred. The Council have lost once again, this time on appeal, their argument that those proceedings required to expressly claim a sum of money, in order to avoid a time bar crash landing. In this case the Court were content that the Council were left “in no doubt that a claim was being made, that it was a claim for payment, and that precise quantification of it would follow in due course.” In the light of carefully constructed legal submissions, drafted by Senior Counsel, which clearly set out the basis of the claim, the Court was not impressed with the Council’s attempts to avoid its liability.

The case is a timely reminder of the time bar risk. The reality is that with construction claims, the 5 year period can pass all too quickly. The full factual circumstances may still be under investigation. Remedial schemes are often still ongoing, and options for resolution still being explored. What is important is to ensure that sufficient steps are taken to avoid a technical knockout to the claim. The message is to take early legal advice. The Sumburgh Airport case clarifies that a sensible, pragmatic approach can be taken to ensure that a claim is protected from a time bar claim, but it is important not to delay in taking protective steps to avoid the risk of your claim being ‘wasted’ by the passage of time: “I wasted time, and now doth time waste me” (Shakespeare, Richard II).

Chris Mackay and Richard Farndale represent Highlands and Islands Airports Limited

Chris Mackay
Partner

Richard Farndale
Director

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