Don't be Misled by Corporate Lawyers

Dear Tony,

Reading my email to The Glazine published last week about the BWF's lighthearted 'interpretation' of national British Standards provided by the only body empowered to set them, I couldn't help but note the complaint in the next box by a Reader who has been told that there is a 6-year deadline on Claims relating to 'Pinking' i.e. discolouration of PVCU profile.

I know it's going to come as a traumatic shock to the Reader and others, but despite their being Officers of the Court and regulated by the Solicitors Act and their own Law Society, lawyers do sometimes tell porkies. Or to put it more accurately they twist the truth until it bleeds making Alastair Campbell look a sissy.

Fenestration surveyors have been dealing with the pinking problem for individuals, companies and in one case advising a systems company over many years now. Pinking first appeared more than a dozen years ago, i.e. it was first acknowledged then. Dr Robin Kent was chair at the BPF Windows Group and mentioned at the close of a routine meeting that he'd been asked to find out who'd been affected - not worth an agenda item but he'd meet anyone who wished next week. Next week brought some 30-40 people from all over the UK to the meeting.

The BPF, along with others, commissioned a report on the subject from Benvic Solvay, one of the perps, and this was completed some 5 years ago and presented by its author[ess] Dr Isabelle Georges Guerand at Dusseldorf. It's a complicated document - anyone wanting a copy can e-mail me or Tony when I shall make it available through him or on the fenstrationassociates.com website.

Knowing that a family of lead stablisers caused all this horror and loss across the whole world, not just here, doesn't solve your Reader's problem. But this might. There are statutory rules limiting the time within which civil actions can be brought , the Latent Damage Act 1986, the 1987 [and revised] Consumer Protection Act for end-users and the Limitations Act 1980. Simple contract or 'tortious' [from Old French 'tort' meaning 'wrong] actions are, as has been said, limited to 6 years from the date of accrual of the cause of action. There are implicit, if not expressed terms in the supply contract which may open the door for a breach of contract action and if loss of reputation is involved action can be brought on either/both grounds. Supply contracts vary wildly as our Reader will know and sometimes don't even exist.

So what does that mean: ‘the date of accrual’? It's the date when the complainant [our Reader or his customer] first knew of or should have known of the degradation of the plastic i.e. when sufficient discolouration had taken place to be noticeable and causing loss of property value. That could have been last week and therefore the initial 6 years starts from then whatever the extruder's lawyers may say. However, in defective product cases where strict liability for damage to property can be established [the front of the house is a mess and the estate agent says we can't sell it], the action can be brought up to 10 years from when the product was put into the manufacturer's hands i.e. 'circulated'.. The embossed BS7413 mark helps to establish that date if not now reduced to merely ‘guidance only’ in line with the BWF position that anyone may ‘interpret’ British Standards.

I ought to say that the extruders, bless'em, are not to blame here. They bought powders and granules primarily from two very old-line international suppliers in good faith. I don't believe for a moment that a company like Norsk Hydro or Benvic would knowingly sell a defective granule but the law says there is liability for UNknowingly selling, for example, poison, vide' the action just started in the US against the tobacco companies. So don't be misled by corporate lawyers - and there are groups of fabricators around the UK now fighting this very colour degradation problem as a group action through single firms of solicitors. Join in, if they'll let you. And good luck.

Jay Webb TechRICS