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

The Limitation Argument (Ground 2)

Mr Grant complained that, in consequence of the events at the hearing, when the judge declined to deal with anything other than the insolvency point, Peabody avoided the burden that they otherwise had of proving that their claim was within time. Therefore, as he put it, Peabody “won on a technicality”. On analysis, I do not think that that submission can be sustained.

I accept Mr Grant’s first proposition of law that, once a defendant has raised a limitation defence, the claimant has to show that his claim is not statute barred: see Cartledge & Ors v E Jopling & Sons Limited [1962] 1QB 189 at page 202; and London Congregation Union Inc v Harriss and Harriss (a firm) [1988] 1All ER 15 at page 78, b-j. I also accept that the general approach of the law, as a matter of policy, is to accelerate, rather than retard, the accrual of a cause of action: see Battley & Anr v Faulkner & Anr [1820] 3B & ALD 286; Nykredit Mortgage Bank PLC v Edward Erdman Group Limited [1997] 1W.L.R.1627 at page 152C-E.

However, I do not consider that what has happened here is in breach of either of those principles. The judge did not decide that Peabody had discharged the burden of proving that their claim was not statute barred. As noted above, the only thing that the judge decided was that the cause of action did not accrue automatically on insolvency, so he dismissed the NHBC’s application to strike out. The judge was not deciding that Peabody had discharged the burden of proving that their claim was not statute barred; he deliberately left open that question to the trial. They may discharge the burden of proof then, but they may not; at the moment, the issue remains moot.

Similarly, although the law generally wants to see claims advanced speedily rather than otherwise, in a case like this, accrual will depend on the provisions of the contract or policy. General policy cannot override the precise words of the agreement between the parties.

For those reasons, I consider that (aside from the specific argument as to the insolvency point, which the NHBC rightly lost), the limitation arguments remain to be decided. I would therefore reject Ground 2 of the appeal.