A recent Court of Appeal judgment demonstrates that
professionals should seek payment of their fees promptly in order
to avoid their claim becoming time-barred. Insurers and legal
representatives defending claims should also keep in mind the
consequences of the time bar provisions when defending claims where
there has been an element of delay.
The judgment was given in the context of an unusual set of facts.
The appellant surveyor was engaged by a homeowner to survey a
window of a property that suffered from subsidence and to oversee
the necessary remedial works. The surveyor's fees formed part
of the owner's insurance claim. Despite completion of the work
in 1998, the surveyor's bill was not presented to the
owner's insurers until 2001. The insurers queried the size of
the bill and asked for further information. The surveyor did not
respond to their enquiries until 2007 due to ill-health and other
reasons. The insurers were only willing to pay the surveyor a lower
sum than that invoiced to the owner (the owner having died). In
2008, the surveyor commenced proceedings for payment of his fees
from the executors of the owner's estate. The court found that
his claim was out of time, the reason being that the surveyor's
contract was not an entire contract, so he did not have to perform
all of his obligations (to include, in this case,
managing/completing the insurance claim) before he was entitled to
payment. In those circumstances the surveyor's cause of action
had accrued at the very latest by 1999. The Court of Appeal upheld
this finding.
The decision highlights the importance of professionals seeking
payment of fees promptly following the completion of the majority
of their work (regardless of whether some work still remains
outstanding). Insurers and legal representatives defending claims
should also be mindful of the provisions in case there are defences
available based on the claim being brought out of time.
Further reading: Smales v Lea & Others (2011)
CA (Civ Div) 19/10/2011 Judgment delivered extempore
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The original publication date for this article was 25/10/2011.
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