Judge dismisses claim by operator of defects at council-owned stadium
Construction firm Interserve has succeeded in the Technology and Construction Court in having parts of a claim over alleged defects in Swansea’s Liberty Stadium struck out.
Swansea City Council was also a defendant in the case as the stadium’s freeholder, which was brought by its lessee and operator Swansea Stadium Management Company
Mrs Justice O’Farrell noted she was asked to decide Interserve’s application for summary judgment against the management company on the ground that the limitation period had expired when proceedings were commenced.
She said the council had in June 2004 engaged Interserve to design and build the stadium and in April 2005 Gardiner & Theobald, the employer's agent, wrote to Interserve to say works had reached practical completion other than “some works to complete and defects to be made good and we will be issuing a schedule next week”.
In April 2017 the management company issued a claim seeking damages of £1.3m in respect of alleged paint delamination and associated corrosion to the exposed steel structural elements and inadequate surfacing of the concourse and mezzanine floor that caused some visitors to slip and fall.
It argued that the design and construction of the concourse flooring, and the supply, construction and painting of the steelwork were defective and that Interserve failed to identify and rectify these faults despite its obligations under the contract.
Interserve told the court the claims were time barred because they were made more than 12 years after practical completion.
The management company argued that practical completion was not achieved in March 2005 as Interserve was still at work on snagging.
Giving judgment in Swansea Stadium Management Company Ltd v City & County of Swansea & Anor [2018] EWHC 2192 (TCC), O’Farrell J said: “The [Gardiner & Theobald] letter is strong evidence that practical completion occurred on 31 March 2005.
“The letter was sent by the employer's agent to [Interserve] and contained a clear statement that the works had reached practical completion in accordance with clause 16.1 of the Building Contract.
“No evidence has been put before the court that there was any challenge to that statement or that the parties did not operate the relevant provisions of the Building Contract on the basis that practical completion had been achieved.”
She said that regardless of the physical state of the works at 31 March 2005, or any ongoing works by Interserve “they were deemed to be complete on that date”
The judge said it followed that any breach of the collateral warranty in respect of the claims must have occurred by 31 March 2005 and that since the management company issued its proceedings on 4 April 2017 they were statute barred.
She said the management company therefore had no real prospect of success and Interserve had “established its entitlement to summary judgment”.
A spokesman for Interserve Construction told the BBC: "The claim that is left is in respect of clause 16 in the contract, which is essentially defects that were identified in the defect liability period, one year after practical completion, with a question as to whether these defects were made good or not."
Mark Smulian
