What remedies may be claimed?
The Bill has a specifi c section 7A aimed at setting out the remedies that may be claimed. This does not exist under the current legislation.
In particular, the Bill contemplates a claimant being able to claim for the cost of rectifying “defi ciencies that enabled the penetration of water into the building concerned” as well as “deficiencies that have the potential to enable the penetration of water into the building”.
My initial interpretation of this clause is that a claimant with a house that does not currently leak, but has the potential to leak, would be entitled to seek the costs concerned with ridding a house of its potential to leak.
However, it has carefully been pointed out in the policy statement that accompanies the Bill that, in order for a claim to be eligible for the WHRS, there still must be evidence of water ingress. So there must be water ingress fi rst, and then the additional remedy set out can be sought. 7A only expands the remedies available, not the type of claims that are eligible.
Termination of claims not pursued
A new clause 12B is contemplated in the Bill, whereby the chief executive may terminate an adjudication claim where it believes that the claimant is not making enough effort to resolve it.
The chief executive must provide 28 days’ notice, and unless the claimant applies to have the claim adjudicated or, alternatively, satisfies the chief executive that enough effort is being made to resolve it, the claim may be terminated.
Low value claims
A new section 39A is contemplated by the Bill, and deals specifi cally with low value claims. It sets out a number of aims in relation to the adjudication of a low value claim which focuses on a faster, cheaper process minimising the involvement of lawyers and representatives.
It requires that the Weathertight Homes Tribunal (set up by the Act) deals with low value claims on the papers (without a hearing) unless satisfied on reasonable grounds that it believes the cost of repairs will exceed the low value ceiling, or for some other appropriate reason. The ceiling for a low value claim has not yet been set.
Time frames for mediations
Another change that will be brought in by the Bill relates to time frames for mediations. For claims brought under section 6B being multi-unit claims, a claimant and the other parties will have 40 working days to resolve a claim.
For single dwelling claims it is limited to 20 working days.
The Limitation Act 1950 imposes a six-year limitation on claims brought in contract or in negligence from the date of reasonable discoverability. In short, if you wait more than six years from the date you discover you have a leaky building, then it is too late to bring proceedings in any court or within the WHRS.
The current s55 makes it clear that making an application to the WHRS equates to the commencement of proceedings as far as adjudications are concerned. Under the Act as it exists at this moment, it is still unclear as to whether an application made to the WHRS operates as the filing of proceedings in a court for the purposes of the Limitation Act 1950.
The proposed change as set out below changes that: 55 Application of Limitation Act 1950 to applications for assessor’s report “For the purposes of the Limitation Act 1950 (and any other enactment that imposes a limitation period), the making of an application under section 9(1) has effect as if it were the fi ling of proceedings in a court.
” The effect of the proposed amended s55 means that making an application for an assessor’s report will equate to fi ling of proceedings in the court, no matter whether an adjudication has been brought or court proceedings are issued.
It seems that if this amendment is made, an application made for an assessor’s report under the WHRS regime will stop the clock ticking as far as the six-year limitation is concerned for adjudication proceedings as well as court proceedings. However, like most things in the law, it will still be an arguable point.