Singh v Dass

Factual and Procedural Background

The Plaintiff appealed against a decision by District Judge Ingram at Birmingham County Court dated 30th September 2015, which dismissed the Plaintiff's claim against the Defendant on the preliminary ground that the claim was statute-barred under the Limitation Act 1980.

The claim arose from an oral building contract made around June 2007, under which the Plaintiff was to carry out renovations to a care home owned or operated by the Defendant at the Property. The Defendant agreed to pay a daily labour rate and reimburse materials. In May 2008, the Plaintiff contended the contract was varied to replace stage payments with a lump sum payment of outstanding labour charges plus 10% upon project completion.

The Defendant alleged that in November 2008 the Plaintiff made an unwarranted demand for an additional £10,000 as a condition for obtaining a certificate of completion. The Defendant treated this as a repudiatory breach and terminated the contract on 23rd November 2008, stating all payments due had been made.

A Building Regulations completion certificate was issued by Birmingham City Council in January 2009. Approximately six years later, in November 2014, the Plaintiff issued proceedings claiming an outstanding sum of £31,260.41 for unpaid wages and unreimbursed materials between May 2008 and January 2009.

The Defendant denied any outstanding sums and maintained the contract was terminated in November 2008, asserting the claim was time-barred as the cause of action accrued more than six years before the proceedings were issued.

A preliminary hearing before the District Judge focused on the date the cause of action accrued. The Plaintiff argued it accrued in January 2009 upon issuance of the completion certificate, while the Defendant argued it accrued on contract termination in November 2008.

The District Judge found the contract terminated on 23rd November 2008, concluding the claim was statute-barred as proceedings were issued after the six-year limitation period. The Judge found the Plaintiff's evidence "contradictory and evasive" and the Defendant's evidence credible, rejecting the alleged contract variation.

Permission to appeal was granted on the narrow ground of whether post-termination payments by the Defendant could amount to a fresh accrual of the cause of action under section 29(5) of the Limitation Act 1980, a point not raised below.

Legal Issues Presented

1. Whether the cause of action accrued on the date of contract termination in November 2008 or on the date of the completion certificate in January 2009 for limitation purposes.
2. Whether post-termination payments made by the Defendant could amount to a fresh accrual of the cause of action under section 29(5) of the Limitation Act 1980, thereby negating the limitation defence.
3. Whether the appellate court should permit the Plaintiff to raise the fresh accrual point on appeal, given it was not raised before the lower court.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff continued working on the project and received payments from the Defendant after 23rd November 2008.
• Those payments were part payments or partial discharges of the accrued debt.
• Therefore, under section 29(5) of the Limitation Act 1980, a fresh accrual of the cause of action occurred, rendering the claim not statute-barred.

Appellee's Arguments

• The Defendant argued the new point under section 29(5) should not be allowed on appeal as it was not raised below and would require new evidence.
• Had the point been raised below, the trial would have proceeded differently with respect to evidence.
• On the existing findings and evidence, the Defendant contended the section 29(5) argument could not succeed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mullarkey v Broad [2009] EWCA Civ 2	Appellate courts generally do not permit new points on appeal if they require new evidence or would have altered trial conduct.	Applied to refuse the new point raised on appeal as it would require new evidence and change the trial approach.
R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24	Criteria for allowing new points of law on appeal: adequate time to respond, no detriment, and protection in costs.	Considered in assessing whether to permit the late-raised section 29(5) point.
Phillips & Co (a firm) v Bath Housing Co-operative Ltd [2013] EWCA Civ 1591	Interpretation of "other liquidated pecuniary claim" under section 29(5) Limitation Act 1980.	Used to clarify the type of debts covered by section 29(5).
In Re Footman Bower & Co. Ltd. [1961] Ch 443	Payments towards a running account can trigger fresh accrual under section 29(5); payments to statute-barred debts alone do not.	Applied in analysis of post-termination payments and their effect on limitation.
Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 W.L.R. 565	Payments made in respect of undisputed parts of a debt do not trigger fresh accrual for disputed parts under section 29(5).	Referenced in assessing whether post-termination payments acknowledged the disputed debt.

Court's Reasoning and Analysis

The court examined whether the new point concerning fresh accrual under section 29(5) of the Limitation Act 1980 could be admitted on appeal despite not being raised below. The court applied established principles cautioning against allowing new points on appeal that require new evidence or would have changed the trial conduct.

The District Judge’s findings focused exclusively on whether the contract terminated in November 2008, with limited consideration of post-termination payments, which were explained by the Defendant as payments for materials or personal assistance unrelated to the disputed debt.

The court noted that raising the section 29(5) point now would necessitate fresh evidence and a different evidential approach, which was not undertaken below. The existing findings of fact by the District Judge, which the appellate court would be reluctant to revisit, undermined the Plaintiff’s new argument.

Additionally, the evidence concerning post-termination payments was unclear and disputed, involving questions about the nature of payments, their recipients, and whether they constituted part payments of the debt. These issues were not explored below and could not be resolved without further evidence.

Therefore, the court concluded that the Plaintiff should not be permitted to raise the fresh accrual argument on appeal, as it failed the criteria for introducing new points at this stage.

Holding and Implications

The appeal was DISMISSED.

The court upheld the District Judge’s decision that the Plaintiff’s claim was statute-barred, as the cause of action accrued on contract termination in November 2008 and the proceedings were issued after the six-year limitation period.

The court refused to allow the Plaintiff to raise the new point of fresh accrual under section 29(5) of the Limitation Act 1980 on appeal due to procedural and evidential considerations.

The direct effect is that the Plaintiff’s claim remains dismissed and the Plaintiff must pay the Defendant’s costs of the appeal. No new precedent was established by this ruling.