Neutral Citation No:  NIQB 39
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
2015 No. 15397
(i) Is the plaintiff's claim in contract statute barred pursuant to Article 4 of the 1989 Order?
(ii) Is the plaintiff's claim in negligence (including for negligent misstatement) statute barred pursuant to Article 6 of the 1989 Order?
(i) The plaintiff was appointed to the position of Faculty Administrative Officer at the Coleraine Campus of the defendant from 15 October 1984.
(ii) By April 1994 all six Faculty Administrative Officers, including the plaintiff, applied to the defendant for a regrading of their position to ALCS5 as part of the annual review process. The plaintiff's regrading application was made contemporaneously with those of other Faculty Administrative Officers employed by the defendant.
(iii) In or about September 1994 the defendant's Department of Human Resources wrote to the plaintiff in the following terms:
"… In relation to job duties the senior management team have decided quite properly, to assess and review faculty administrative post requirements bearing in mind recent changes and developments posed by new structures. It would be inappropriate for me to provide you with a job description at this stage which might prove inaccurate, but I can advise you that the duties expected from 1 October 1994 will be substantially similar to those you currently undertake. It is important that a thorough review of faculty administrative duties is completed quickly and in this matter I will write again as soon as possible." [Emphasis added]
(iv) In October 1994 the defendant's Staff Progress Committee issued a memorandum in respect of the plaintiff's application. It stated:
"Being aware of the necessity for a review to be undertaken of faculty administrative work, which is currently underway, the Committee felt your case and other similar candidates would be better considered following the review to which I have referred. The Staff Progress Committee will consider the grading of faculty administrative staff in due course and any regradings from the process will be backdated to 1 October 1994." (Emphasis added)
(v) This assurance was repeated on 4 August 1995.
(vi) The plaintiff ceased employment with the defendant on 30 June 2003 and thereafter has been in receipt of pension payments.
(vii) On 1 August 2006 pursuant to the National Framework Agreement, job evaluation was introduced to all universities, including the defendant, and the plaintiff's former post (as Head of Faculty Administration) was benchmarked and job evaluated under the agreed Job Evaluation Scheme at the new Grade 9 under the single column salary scale which equated to the old ALCS5. The defendant did not retrospectively apply the regrading to the plaintiff's previous employment in that post. The regrading review, inclusive of appeals, was completed no later than August 2010. (It is agreed that by August 2008 the plaintiff would have been entitled to issue proceedings as a consequence of the failure to carry out regrading.)
(viii) The plaintiff said that he had no actual knowledge of what had happened and in particular that he had not received a retrospective upgrading, until 16 October 2010 when he was informed of this by a former colleague.
(ix) On 6 August 2012 the plaintiff's former solicitors issued a writ of summons on his behalf. The action was struck out on the basis that the writ of summons had not been validly served within 12 months of being issued.
(x) On 13 February 2015 the plaintiff's current solicitors issued a writ of summons in respect of the instant action.
C. RELEVANT LEGISLATIVE PROVISIONS
"Subject to Articles 5, 7 and 9, the following actions may not be brought after the expiration of six years from the date on which the cause of action accrued—
(a) An action founded on simple contract …"
"(1) Subject to paragraph (2) and to Articles 7 and 9 and 11 to 13, an action founded on tort may not be brought after the expiration of six years from the date on which the cause of action accrued."
D. THE ONUS OF PROOF
"In principle it might be expected that the defendant, having pleaded the statute, would bear the burden of proving that the claimant's cause of action accrued outside the limitation period and was in consequence statute barred. However, there is weighty authority for the view that the burden of proof is on the claimant to show that his cause of action accrued within the statutory period (eg see Haward v Fawcetts  UKHL 9 at , per Lord Mance).
In Cartledge v E Jopling and Sons Limited  1 KB 189 the Court of Appeal so held. But in the House of Lords (1963 A.C. 758 at 784) Lord Pearce placed a gloss on the proposition when he stated that, although the initial onus was on the claimant, once he had satisfied that onus, the burden passed to the defendant to show that the apparent accrual of cause of action was misleading and that in reality the cause of action accrued at an earlier date. […] In London Congregational Union Inc v Harriss and Harriss  1 All ER 15 at 30 Ralph Gibson LJ stated that the claimant must show, on the balance of probabilities, that the cause of action accrued, ie came into existence, on a day within the period of limitation. Only then would the onus shift to the defendant. The burden of proof may less often be of significance in contractual actions and actions in tort, but may still be of importance in certain cases."
"[A] remediable breach is just as much a breach of contract when it occurs as an irremediable breach, although the practical consequences are likely to be less serious if the breach comes to light in time to take remedial action. Were the law otherwise, in any of these instances, the effect would be to frustrate the purpose of the statutes of limitation, for it would mean that breaches of contract would never become statute-barred unless the innocent party chose to accept the defaulting party's conduct as repudiation or, perhaps, performance ceased to be possible."
"There are no special facts as suggested that solicitors assumed a continuing duty to Mr Nouri which survived the completion of the transaction."
While I am not bound by any English Court of Appeal or Privy Council decision, they are persuasive precedents that I should follow unless there is good reason not to do so; see Beaufort Developments Limited v Gilbert-Ashe NI Ltd and ors  NI 42 and Willers v Joyce and another  UKSC 44
"… there was in any event a binding contractual promise resulting from the terms of the promise and the circumstances on which it was made."
Again for reasons which will become clear I do not think that it matters whether there was a variation of the plaintiff's contract of employment or a separate contract/promise entered into between the plaintiff and the defendant as employee and employer.
(i) To review quickly;
(ii) To then carry out a regrading exercise; and
(iii) To then refund depending on what back pay is due following that regrading exercise.
This is not a continuing obligation. There was a breach when the defendant failed to carry out the review quickly. Without it being necessary to determine the time scale envisioned by quickly, it cannot be gainsaid that the breach had occurred many years before August 2006. The regrade and refund (if appropriate) were to follow on from that review.
" Those breaches remain unremedied, but an unremedied breach of contract is just that: a breach of contract which has not been remedied. In the normal way, it is impossible to construct a continuing contractual obligation, in the sense of one which gives rise to a fresh breach on a daily basis, from the mere failure to perform the original obligation in due time. This remains the case, as Nicholls LJ explained in Bell v Peter Browne & Co  2 QB 495, even if the party in breach is asked to make good his default but fails to do so. As Nicholls LJ said, at page 501A:
'His failure to make good his existing breach of contract on request would not have constituted a further breach of contract: it would not have set a new six year limitation period running. Once again, the position would have been simply that the solicitor remained in breach.'
 Conceptually, there is of course, a class of contractual duties which do give rise to a continuing obligation to perform them which arises afresh from day to day. Examples are given by Nicholl LJ in the Bell case, at page 501D-E (repairing clauses and lease) and by Nixon J in Larking v Great Western (Nepean) Gravel Limited  64 CLR 221 at 236. To quote Dickson J, a duty of this nature is one to maintain a state or condition of affairs." (Emphasis added)
There was an unremedied breach here. A failure, as promised, to carry out a review promptly and then to regrade and refund what was due consequent upon that review. This was not a duty to maintain a state or condition of affairs. It was to carry out an agreed course of action. That failure had occurred more than 6 years before the plaintiff issued these present proceedings. Consequently, proceedings issued in February 2015 are statute barred. It makes no difference whether the cause of action is contract or tort.
"Nicholls LJ emphasised that this approach applied to the normal case in which a contract provides for something to be done and the defaulting party fails to perform that obligation at the time when it is due under the contract in which case there is a single breach of contract. He distinguished this from those exceptional cases where the true construction of the contract was that the obligation in question was of a continuing nature and on each day when it is not performed a new breach occurs. He gave as an example of the latter the usual repairing obligation to be found in the tenancy agreement which was hardly promising when it came to reconciling the decision in Bell with that in Midland Bank. This he said may be distinguished on the grounds that the solicitors in Midland never treated themselves as functus officio in relation to the option and continue to deal with the client upon the subject of the option while in Bell the solicitor had no contact with the client from shortly after the breach."
(i) The obligation to "review, regrade and repay" was not a continuing one and any cause of action whether in contract or tort had accrued in excess of 6 years before these proceedings were instituted in 2015; and
(ii) Even if there was a continuing obligation under a variation of the contract of employment or under an independent contract concluded between the defendant and the plaintiff, it came to an end when the plaintiff's contract of employment was terminated in 2003 and any cause of action whether in contract or in tort accrued on that date.
(i) The plaintiff's claim in contract is statute barred pursuant to Article 4 of the 1989 Order.
(ii) The plaintiff's claim in negligence (including any claim for negligent misstatement) is statute barred pursuant to Article 6 of the 1989 Order.
I will hear the parties on the issues of costs when they have had an opportunity to digest the contents of this judgment.