LIMITATION, KNOWLEDGE, AND EXPERT REPORT
In Management Corporation Strata Title Plan No 4099 v KTP Consultants Pte Ltd [2024] SGHC(A) 32 (“MCST4099”), the Appellate Division allowed the management corporation’s (“MCST”) appeal against the High Court’s decision to strike out the MCST’s claim against the structural engineer and Qualified Person (Civil & Structural Works) (“KTP”) on the basis of time bar.
The earlier decision. In the earlier decision in Management Corporation Strata Title Plan No 4099 v TPS Construction Pte Ltd and others [2024] SGHC 149, the High Court had struck out the MCST’s claim against KTP on the basis that the claims were time-barred under the Limitation Act 1959 (2020 Rev Ed) (the “LA”).
We had previously blogged about the High Court’s decision. But in short, one of the key reasons why the High Court allowed the striking out application was on the basis that, upon receipt of an expert report (the “Bruce James Report”), the MCST had the requisite knowledge for triggering the time-bar under the LA (MCST4099 [23]).
Appellate Division. On appeal, the Appellate Division disagreed with the High Court, and allowed the MCST’s appeal against the High Court’s decision to strike out the MCST’s claim against KTP.
Striking Out. The Appellate Division highlighted that the application arose upon a striking out application “filed after close of pleadings. There has been no discovery of documents, nor have affidavits of evidence-in-chief been filed. Accordingly, the court must proceed on the basis that the claimant will prove all the facts that he pleads, and determine whether, on those facts, the claimant will not be entitled to his remedy against that defendant” (MCST4099 [56]).
Turns on Evidence. The Appellate Division analysed the MCST’s case and noted that it is a claim that is dependent on evidence, including expert evidence, that would be adduced at trial (MCST4099 [62]).
Analysis of the Bruce James Report. The Appellate Division then analysed the Bruce James Report, adopting a two-step process of asking what would the MCST have actually known, and what knowledge the MCST might have reasonably known (MCST4099 [65]).
In doing so, the Appellate Division state that this would require interpreting the Bruce James Report in context, as it “was the work of an expert seeking to communicate his concerns and recommendations to individuals who are not trained in his expert discipline. It must be read in that light. It is not a contract still less a statute” (MCST4099 [65]).
The Appellate Division also agreed with the High Court in this regard that what an expert has written to a lay recipient can be generally understood by the court without the expert (or any other expert) testifying to explain the document (MCST4099 [67]).
However, the Appellate Division held that reading the text of the Bruce James Report alone, it would not point to wider structural issues (MCST4099 [67]). In doing so, the Appellate Division noted that the context was important. The report was prepared by a firm of building surveyors and the inspection was purely visual. There was no suggestion that the firm was engaged to check the structural integrity of the building nor that the expert was qualified to do so. Hence, “[b]oth these aspects of context support a reading of the report as identifying only one systemic issue namely the external quality of the [composite engineered timber alike panels].” (MCST4099 [67])
The Appellate Division then held that upon receipt of the Bruce James Report, while “it recommends further investigations, such investigations appear to be directed at the question of external quality (ie the choice of [composite engineered timber alike panels]) rather than pointing to anything concerning the fixings” (MCST4099 [71]). The Appellate Division noted in this regard that the façade specialist that was engaged six years later conducted an inspection that differed but only by virtue of the specialism, but also in terms of the inspection methods adopted (MCST4099 [71]).
The Appellate Division further emphasised that “at this stage of proceedings, full context to the Bruce James Report has not been established” (MCST4099 [72]). Why is this relevant? This is because, as the Appellate Division noted that MCST4099 [72], what the MCST did after the Bruce James Report may potentially be relevant. We set out the relevant excerpt below:
“72 We should add that, at this stage of proceedings, the full context to the Bruce James Report has not been established. At trial, there may be evidence that sheds further light on the context in which the Bruce James Report should be read. For example, there was limited evidence before us concerning what was done after the Bruce James Report. What happens after advice is received may shed light on how the advice was understood in context, if its meaning is not otherwise clear. Based on the available evidence, what happened may be stated briefly. The MCST raised the Bruce James Report with TPS, the design and build contractor, and they carried out a programme of rectification that apparently met with Bruce James’ satisfaction: see [10] above. No evidence has been tendered at this stage concerning what was done, whether in terms of further investigation or rectification. Such evidence could be material, as in the ordinary course what was done should broadly match how the Bruce James Report was understood at the time. There is no evidence at this stage that TPS did anything beyond addressing the external quality of the units mentioned in the Bruce James Report. If in fact they did more than that, such as investigated the fixings generally, then this could be evidence that, in the context operating at the time, the Bruce James Report was reasonably understood to relate to systemic structural issues. To use an analogy, if a regular patron of an Italian restaurant asks for the chicken, without specifying the style, and then when presented with chicken parmigiana eats and pays for it, this context occurring after the utterance will inform the other restaurant guests that what the patron meant to order was indeed chicken parmigiana and not chicken cacciatore. The absence of any evidence of such context which could be supplied at trial is itself a reason to defer the issue of limitation to trial.”
Conclusion. Striking out applications are not easy to succeed in, and as the Appellate Division stated at MCST4099 [4], fact-sensitive inquiries would rarely be amenable to determination on a summary basis. And as the Appellate Division was careful to emphasize, the finding in the appeal was simply that “at this stage of proceedings it is not clear and obvious that, upon receipt of the Bruce James Report, the MCST had knowledge, actual or constructive, that the damage was attributable to acts or omissions of the structural consultant or the QP(ST)”.
But it remains the case that it is important for parties in similar positions to the MCST to read any expert reports commissioned carefully. Had the Bruce James Report been worded differently, such that, e.g., it had implicated structural or design issues, a different result may have been reached by the Appellate Division.
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