CA-2024-002563 - [2025] EWCA Civ 932

Site Security Costs (Ground 5)

The argument that arises here is that, as the NHBC submitted to the judge, the claim for security costs clearly arose in 2016 and, because this is a unitary cause of action, that meant that the whole claim was statute-barred. The judge rejected that on the basis that this was an additional and separate claim under D1. He went on to say that:

“66.

As to whether the [D1] claim is time-barred, on the basis that the costs were incurred more than six years before the Claim Form, the Court is faced with the difficulty that, no doubt because this point did not appear as part of the Application or the evidence, Peabody did not address it either in its evidence or its skeleton argument. There is limited evidence about the costs in question. For example, the letter of 18 January 2018 relied upon by NHBC stated that the costs were incurred to secure the site and to remove squatters. But the detail of the costs was set out in Section E of the claim document, which is not in evidence.”

On appeal, Mr Smith argued cogently that it was plain that these costs were incurred in 2016; that they were covered by the Policy at D1; and that liability did not depend on the requirement that Peabody “have to pay more” than they would have had to have paid to Vantage. Mr Smith said that pursuant to D1 this was an additional cost, and therefore recoverable as such. In consequence he said that, since this was a unitary cause of action, it meant that the whole claim was statute barred. In support of that last submission he relied on Bann Carraig Limited v Great Lakes Reinsurance(UK) PLC [2021] NIQB 63 and the passage at Colinvaux & Merkin at C-0242.

In response, Mr Casey argued that this was covered by the “if…you have to pay more” provision and so could not be determined by this court. In any event he said that, even if he was wrong about that, the only claim that would be statute barred was the separate free-standing claim for site security costs, not the whole claim.

In my view, the judge was right to say that this was a separate claim. He was also right to say at [65] that this separate claim was not triggered by the “if…you have to pay more” requirement. This was a different claim, to which different considerations applied.

If, however, this was a separate and free-standing claim, as the judge said it was, then I do not accept that it was part of a unitary cause of action. It was distinct from the main cause of action. It therefore falls to be considered separately. Bann Carraig is not on point since that was a claim under a property policy and for the reasons that I have explained, that is not this case.

I am bound to say, that on the material presented by Mr Smith, a prima facie case was made out that the separate claim for site security costs was potentially statute barred. However, I have set out [66] of the judgment below, where the judge declined to reach that conclusion, including the absence of specific evidence. In those circumstances I would again be reluctant to interfere with that decision: it might be said that it was a matter of evaluation for the judge. That means that this point too remains to be decided.

For those reasons, therefore, whilst I decline to allow ground 5, I would suggest that Peabody look very closely at this individual head of loss. I reiterate that, had I been considering this matter at first instance, I may have concluded that, absent any compelling evidence that led to a different view, it was statute-barred.