ACCRUAL OF CAUSE OF ACTION IN CONTRACT AND NEGLIGENCE

Proctor & Gamble (Health and Beauty Care) Ltd v Carrier Holdings Ltd [2003] EWHC 83 (TCC); [2003] BLR 255

In Proctor & Gamble (Health and Beauty Care) Ltd v Carrier Holdings Ltd [2003] EWHC 83 (TCC); [2003] BLR 255 Mr Justice Forbes considered the date on which a cause of action accrued in a claim brought for breach of a collateral contractual warranty and in negligence. He held that the claim on the contractual warranty accrued, not on the date on which any misrepresentation was made by the defendants, but when delivery of non-compliant units was completed. In relation to the claim in negligence he held that the claimant suffered loss, not when any misrepresentation was made, but at the point in time at which the claimant acquired a property interest in air-conditioning units which were actually less valuable than compliant units would have been. The conclusion would appear to be dependent in large part upon the nature of the warranty assumed to have been given by the defendants. On the assumed facts the warranty given by the defendants was one to the effect that the units ‘would provide’ the promised performance. This future element in the warranty enabled Mr Justice Forbes to conclude that the cause of action did not accrue immediately. However, had the warranty been that the units did provide the promised level of performance, then the cause of action may have accrued on the giving of the warranty. In other words, it is important to have regard to the precise nature of the warranty given when deciding the date on which the cause of action accrued.