6 July 2023
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NEW JUDGMENT ON BUILDING SAFETY ACT AND DEFECTS CLAIMS: Court of Appeal provides important guidance on defects claims in the context of the Building Safety Act

To The Point

The Building Safety Act 2022 (BSA) received Royal Assent on 28 April 2022.  The judgment in URS Corporation Ltd v BDW Trading Ltd is the first Court of Appeal judgment since then to consider key aspects of defects claims against the landscape of the changes introduced by the BSA. The judgment will be of particular interest to developers as it provides helpful guidance on their rights to bring claims under the Defective Premises Act 1972 (DPA) and the Civil Liability (Contribution) Act 1978 (Contribution Act), together with the impact of the 30-year retrospective time period for bringing claims under section 1 of the DPA introduced by section 135 of the BSA.


The Court of Appeal decided (amongst other matters) that:

  • developers can both owe and be owed a duty under the DPA;
  • developers can be entitled to make a claim for contribution even if no claim is made against them; and
  • the 30-year retrospective time period is effective where proceedings are already underway.

View the judgment here >

This litigation stems from developments completed between 2005 and 2012 and alleged defects in those developments found by the developer, BDW, after carrying out extensive safety investigations following the Grenfell Tower disaster in 2017.  

The parties had been before the Technology and Construction Court (TCC) on several occasions and in February 2023 Lord Justice Coulson directed that the appeal of three of the TCC's judgments should be heard by the Court of Appeal together in part because "both appeals concern potential issues that arise out of s135 (and possibly other parts) of the Building Safety Act 2022.  The section is novel, and the issues to which it gives rise have never been considered before…[and] some appellate guidance may be helpful".

Three key points decided by the Court of Appeal were:

Developers are owed a duty under the DPA
Developers can be entitled to contribution even if no claim is made against them
The 30-year retrospective time period is effective where proceedings are already underway

Other findings

The judgment also deals with the important issue of the nature and extent of professionals' liability in tort and the date when a cause of action in negligence for economic loss accrues (confirming the general position that such rights accrue at the date(s) of practical completion).  We will consider those aspects of the case in a later article.

Impact of Judgment

As well as providing helpful guidance on some thorny issues involved in defects claims, this judgment will provide comfort to developers in similar positions to BDW that they are able to pursue claims both under the DPA and the Contribution Act.

The clarification given by the Court of Appeal offers a potential route for commercial developers to recover losses incurred in remediating defective buildings that were completed since the early 1990's against contractors, sub-contractors, designers, project managers and others in the original supply chain.

Next Steps

Our Construction & Engineering team has a wealth of experience of defects claims and is at the forefront of advising on the BSA and would be delighted to discuss the implications of this judgment with you further – just get in touch with one of our Key Contacts opposite or your usual contact.

To the Point 

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