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

The NHBC’s Application

On 24 July 2023, Peabody commenced these proceedings against the NHBC under the policy. It was alleged that the total additional costs of the 88 units was £913,555.36. That claim was less than 10% of the Vantage contract sum, which was the cap set out in the policy in respect of Option 1.

On 18 January 2024, NHBC applied to strike out the claim on the ground that it was statute barred, alternatively they sought reverse summary judgment on the same basis. The application was in general terms. The reason for the application was, however, explained at paragraph 16 of the accompanying witness statement of Ms Ibukunoluwa Alabi dated 18 January 2024. She said:

“In the course of my review of the matter, it became evident to me that Catalyst’s claim had become statute-barred on 29 June 2022 pursuant to section 5 of the Limitation Act 1980, by virtue of more than six years having passed since Vantage went into administration on 29 June 2016.”

This proposition was denied by Peabody, who served a statement from Mr Mark London, Peabody’s solicitor. That statement was dated four months later, in May 2024. It said that the NHBC were wrong to say that the cause of action arose on Vantage’s insolvency ([3]). Although the statement did not spell out in terms when Peabody said that the cause of action accrued, from [17] onwards, Mr London spent a good deal of time explaining “when Peabody incurred additional costs of completing the homes”. He said at [20] that “the date when Peabody incurred more than it would have done with Vantage is relevant to the accrual of a cause of action, which can be calculated.”

In response to this, there was a second statement from Ms Alabi dated 31 May 2024, which said at [7.3] that “whilst I do not intend to argue NHBC’s position in this witness statement, I do think it may be helpful to the court to note that, even on Peabody’s position…, the facts clearly point to Peabody’s claim having been issued out of time as I explain further below.” The statement then contains a detailed explanation as to why Ms Alabi said that “there was never any prospect of Peabody ‘paying less’ to complete the insured homes following Vantage’s insolvency…the risk that the insured would have to ‘pay more’ must, therefore, have arisen either on or shortly after Vantage’s insolvency. But it undoubtedly arose at the latest by January or February 2017 and Catalyst realised this by then.” Given that 6 years before the commencement of the proceedings was 23 July 2017, if Ms Alabi was right, it would mean that, even on Peabody’s construction of Option 1, the claim was still statute-barred.

Ms Alabi’s second statement was provided about a week before the hearing of the application, which took place on 7 June 2024. The judgment dismissing NHBC’s application was dated 6 August 2024.