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The man argued that the university had a continuing obligation to “review, regrade, and refund” him in regards to regrading his post. The university had assured employees that this would be backdated to 1st October 1994 once the regrading process had taken place, however, regrading of the position did not take place until 2006.

Mr Justice Horner was satisfied that the university’s obligation towards the man ceased when he retired in 2003. As such, the claims issued in 2015 were statute barred.

Chronology

Mr Felix Agnew was appointed as the Faculty Administrative Officer at University of Ulster’s Coleraine Campus in October 1984, and in April 1994 he applied for a regrading of his position to ALCS5, along with other Faculty Admin Officers.

In September 1994, Human Resources wrote to Mr Agnew stating that it would review the post requirements quickly, but that the duties he would be required to undertake from 1st October 1994 would be “substantially similar” to his present duties. Further correspondence in October 1994 said that the Staff Progress Committee would consider the gradings, and that any regrading from the process would be “backdated to 1 October 1994”. This assurance was repeated in August 1995.

Mr Agnew retired in June 2003, and in August 2006 the person who succeeded him as the Head of Faculty Administration was job evaluated as a grade which equated with ALCS5.

University of Ulster did not retrospectively apply the regrading to Mr Agnew’s employment in that post, and Justice Horner explained that it was agreed that by August 2008 Mr Agnew “would have been entitled to issue proceedings as a consequence of the failure to carry out regrading”.

Mr Agnew said that he learned of the upgrading from a former colleague in October 2010. In August 2012, Mr Agnew’s former solicitors issued a writ of summons, however this was struck out on the basis that it had not been validly served within 12 months of being issued.

A writ of summons for the present action was not issued until February 2015.

Preliminary Issue

The High Court was asked to decide a preliminary issue, namely whether the causes of action in contract and tort were time barred by operation of the Limitation (Northern Ireland) Order 1989, and in particular whether Mr Agnew’s:

Article 4(a) of the Limitation (Northern Ireland) Order 1989 states that actions founded on simple contract cannot be brought after 6 years, and similarly, Article 6(1) states that actions founded on tort may not be brought after 6 years.

Discussion

Mr Agnew argued that the duty owed to him by University of Ulster, to backdate his pay once the review was held, was a continuing one both in contract and tort. As such, he submitted that the causes of action continued to accrue, and were not statute barred.

University of Ulster denied that there was any continuing obligation to review, regrade, or refund Mr Agnew – and submitted that if there was, this was terminated when Mr Agnew’s contract ended in 2003. Following this logic, the claims were statute barred.

Justice Horner said that there was debate as to whether the court should follow Midland Bank Trust Co Limited v Hett Stubbs and Kemp (Ch) 384; or Bell v Peter Browne and Co 3 All ER 124. In Midland Bank, it was held that a solicitor’s duty to register land was a continuing duty until registration became impossible; in Bell, Lord Justice Nicholls said that a remedial breach is just as much a breach as an irremediable breach – “were the law otherwise.. the effect would be to frustrate the purpose of the statutes of limitations, for it would mean that breaches of contract would never become statute barred…”.

Finding that the Court should follow the line of authority in Bell, Justice Horner was also satisfied that the employee/employer contract ceased in 2003, therefore any obligation to review regrade and refund ended at that time. As such, Justice Horner rejected Mr Agnew’s submissions regarding the nature of the variation of the contract of employment, and whether this was a continuing obligation.

Justice Horner concluded that the obligation to “review, regrade and repay” was not continuing, and the cause of action accrued in excess of 6 years before the present action began in 2015.