Introduction

Thousands of buildings in the UK with defects identified following the Grenfell tragedy are yet to be remediated, giving rise to myriad complex legal claims.

The Building Safety Act 2022 (BSA) introduced sweeping changes to industry regulation, and the remedies available to compel rectification works by responsible parties. While uncertainty remains over many aspects of the new regime, a growing body of case law provides helpful guidance on key principles.

DPA Claims

The Defective Premises Act 1972 (DPA) requires building work in respect of residential property to be carried out in a professional or workmanlike manner, using proper materials, so that the property is fit for habitation when completed, i.e. capable of occupation for a reasonable time without risk to the health or safety of occupants, and undue inconvenience or discomfort.

The DPA had been rarely used, prior to the BSA, as parties would typically rely instead on causes of action in contract or tort. All that changed with the BSA introduction of a lengthy retrospective increase to the limitation period for actions under the DPA: 30 years for claims arising from works completed before June 2022. This, combined with the DPA cutting through lines of contractual privity, means it has real teeth for property owners affected by building safety defects.

In URS v BDW [2025], the Supreme Court has recently affirmed the Court of Appeal decision that developers and other construction parties may be owed duties under the DPA, in addition to ultimate purchasers or occupiers, even if the building was sold at full market value prior to discovery of the defects.

URS’ arguments that rectification costs were voluntarily incurred by BDW were dismissed, given the risks of personal injury and reputational damage, regardless of potential limitation defences that could have been raised against notional claimants. Further details here.

In BDW v Ardmore [2024] the Technology & Construction Court (TCC) upheld an application to enforce an adjudication award requiring a Design & Build contractor to pay £14million for breach of the building contract and DPA duties, arising from fire safety defects at a high-rise development in Hampshire.

Historical claims give rise to significant evidential challenges. Ardmore argued that pursuit of adjudication on a 20-year old project was inherently unfair, but this was rejected by the Court, in view of disclosure provided by BDW. While the BSA provides that claims under new limitation periods should be dismissed where continuation would breach a defendant’s right to a fair trial (under Article 6 ECHR), this seems to require proof of further infringement than the mere passage of time.

The decision to allow adjudication of DPA claims is controversial – given the complex issues and sums at stake; varying levels of experience among accredited adjudicators; and expedited timescales applicable in this form of dispute resolution process, with determination typically 4-6 weeks from service of the referral notice. Permission to appeal has been granted.

In Wilson & others v HB (SWA) & Laing O’Rourke [2025], the TCC confirmed that damages for DPA claims are primarily the costs of remediating defects, so that the property is fit for habitation, while other heads of  loss, such as rental income, may also be recoverable. This is important for developers and owners, who may miss out on rental income while a property is being remediated or is otherwise empty. Subject to proof, these losses can be claimed under the DPA.

Remediation Orders

The BSA provides for Remediation Orders (ROs) and Remediation Contribution Orders (RCOs) as a means of requiring landlords, developers or associated persons to remediate defects. Orders may be issued by the First-Tier Tribunal (FTT) upon application by the Regulator, local authorities, or other interested parties.

‘Associated’ is broadly defined, including parent companies, subsidiaries, sister companies, and companies that share or have shared a director in the 5 years to February 2022.

In Grey GR v Edgewater & others [2025], the FTT granted an application by the landlord of Vista Tower, a 16-storey building in Stevenage converted to flats in 2015, for a RCO against the developer and 75 associated companies, requiring them to contribute £13 million towards remediation of fire safety defects.

Grey GR acquired the freehold in 2018. By 2020, combustible cladding panels had been identified, and inadequate fire stopping measures. A waking watch was implemented and some remediation work began, but progress was slow, and the government obtained a RCO against the landlord in May 2024. Grey GR then pursued its own RCO application against Edgewater and 95 parties alleged to be associated with it.

The Tribunal agreed that the developer was a key target, “at the top of the hierarchy of liability (or waterfall)”. The power to make RCOs against related bodies was acknowledged as a radical departure from usual company law, though not ‘piercing the corporate veil’ because individual members were not exposed to unlimited personal liability. Impecuniosity or otherwise of any of the respondents was therefore not a significant reason for, or against, making an order.

The Tribunal rejected arguments that RCOs should be limited to individual orders for specified shares, and confirmed that a single order can be made on a joint and several basis, if just and equitable to do so. Association through common directors alone may not automatically justify a RCO, and additional linking factors will be considered – such as the use of similar business names/branding, family connections, financial dealings between companies and opaque or inaccurate corporate records.

The Tribunal disagreed with the fire safety experts’ opinion that it was reasonable to interpret ‘defect’ as limited to building work that did not comply with Building Regulations (BRs) applicable at the relevant time (noting Dame Judith Hackitt’s conclusion that the pre-Grenfell BRs were not fit for purpose). A defect could therefore include wider issues contributing to a risk to the safety of people in or around the building, including a fire risk categorised as ‘medium: tolerable’ in assessment carried out under PAS 9980. Grey GR has also commenced proceedings in the TCC for Building Liability Orders (BLOs) against Edgewater and others.

In March 2025, two important BSA cases were heard in succession by the Court of Appeal:

  • Triathlon Homes v SVDP & others – contesting the first instance decision to allow a RCO to be made retrospectively recovering costs incurred prior to enactment of the BSA; and considering whether it was ‘just and equitable’ to do so; and
  • Adriatic Land 5 v Lessees of Hippersley Point – reconsidering retrospective effect of Schedule 8 costs protections for qualifying leaseholders.

Court submissions can be viewed online, with judgments currently awaited.

In Triathlon Homes [2023] at first instance, the claimant long leaseholder of 5 blocks within the East Village estate in Stratford successfully applied for a RCO against the original developer and its parent company, requiring them to contribute approximately £17 million towards rectification of fire safety defects.

The FTT held that the motivation behind the RCO application, and the availability of other potential remedies, was irrelevant. The new jurisdiction is essentially ‘not fault-based’, providing a route to secure funding for remedial works, with emphasis on expedited protection for residents. The fact that funds for remediation works had already been obtained from the Building Safety Fund was not a valid reason against making a RCO, since public funding should be an avenue of last resort, and swift reimbursement would mean the funds could be used in the public interest to remediate other unsafe buildings.

In Monier Road v Blomfield & others [2025] the Upper Tribunal confirmed that a RO application does not require or enable the FTT to conduct a building safety audit. It also discusses the circumstances in which the FTT can (a) raise new issues not advanced by the parties and (b) use its expert knowledge, making plain that proceedings before the FTT are an adversarial (not inquisitorial) process.

The dispute concerned a building in East London with commercial premises at ground level, five storeys of residential flats above and a roof terrace containing a garden and stored plant/machinery. At first instance, the FTT queried, on its own motion, whether the building should be considered ‘higher risk’, assuming the rooftop area qualified as a ‘storey’.

This conclusion was contrary to previous government guidance from June 2023, that a ‘storey’ must be fully enclosed, creating uncertainty over the correct approach in subsequent cases.

In 2023, ROs were granted in Batish v Inspired Sutton and Waite v Kedai to cover costs of remediating external cladding and fire safety issues. Leaseholders were unable to recover their costs of the proceedings as the FTT is a ‘no costs’ jurisdiction, save where a party has acted unreasonably – a high threshold that was not met in the circumstances. Subsequent FTT decisions in respect of Centrillion Point and Orchard House demonstrate that a full specification of defects is not required for an RO to be granted.

The Leasehold and Freehold Reform Act 2024 took effect in October, adding detail to the wider RO and RCO provisions in the BSA and providing clarity on matters such as the scope of recoverable costs, steps that landlords are required to take regarding mitigation of defects, and practical matters where the responsible person for a building is insolvent:

  • Relevant Steps

An RO can now also require a landlord to undertake mitigation measures in respect of a relevant defect. For example, this could include steps such as implementation of a waking watch, and installation of fire alarms or sprinkler systems, in order to prevent or reduce the likelihood of a fire or collapse of a building, to reduce the severity of any such event and/or to prevent or reduce the anticipated harm caused.

  • Recoverable Costs

Categories of expenditure that may be the subject of a RCO have been expanded to include mitigation measures, decant costs (arising from temporary re-location of residents) and expert fees.

  • Expert Reports

The Tribunal now has the power to order landlords to produce expert evidence to deal with defects and/or mitigation measures.

  • Insolvency

Within 14 days of an insolvency practitioner being appointed in relation to an accountable person for a higher-risk building, details must be provided to the Regulator, including information under the Insolvency Rules 2016 and an official copy of the register of title.

The changes apply to existing proceedings pending before the FTT, as well as those commenced after the new legislation came into force.

Building Liability Orders

The BSA gives the High Court powers to issue BLOs where ‘just and equitable’ to do so (section 130), extending a ‘relevant liability’ for building safety defects to an associated entity. This could apply to related companies in a defendant’s group, including those domiciled overseas. The claimant would then be able to pursue all parties subject to the order on a joint and several liability basis. The implications are far reaching, circumventing the protection typically achieved by developers on past projects through use of an SPV.

In 381 Southwark Park Road v Click St Andrews [2024], Jefford J in the TCC made a BLO extending the liability of a developer (Click St Andrews) for building safety defects to its parent company (Holdings). The management company and leaseholders of the building had previously been awarded damages for rainwater ingress, structural defects and fire safety issues. The BSA did not require the Court to quantify the relevant liability at the point of making the BLO.

Holdings fell squarely within the definition of ‘associated’, given the corporate structure, with the same person in effective control of both companies. In deciding that it was just and equitable to make a BLO, the Judge had regard to the purpose of the BSA and intention to ensure developers and group companies cannot escape liability for building safety defects through corporate structuring. The financial position of the associated company is irrelevant, and it did not matter that Holdings was said to have no real assets.

It was not necessary for Holdings to have been identified in the pleadings, before a BLO could be made, although it would be sensible to join the intended BLO defendant to proceedings where it is known that an application will be made against them, to facilitate effective case management. The claimants’ argument that section 130 acted as a gateway to a broader order as to the liability of an associated body corporate, so that the BLO could extend to recovery of all losses arising from any liability on the part of Click St Andrews (i.e. not only safety defects) was rejected.

Information Orders

Aside from the adjudication enforcement proceedings referenced above, BDW is pursuing several other claims against Ardmore on various construction projects and applied to the TCC for a Building Liability Information Order (BLIO), requiring disclosure of information to assist with evaluating whether to seek a BLO.

Section 132 of the BSA provides  that a BLIO may be made only if it appears to the court: (i) that the specified corporate entity is subject to a relevant liability, within the meaning of section 130, and (ii) that it is appropriate to require the information or documents to be provided, for the purpose of making, or deciding whether to apply for a BLO.

The judgment of Keyser J notes that a BLO application could be made before any relevant liability has been established; or proceed in tandem with litigation against the principal defendant; or, in some cases, be deferred until after trial of claims in respect of alleged relevant liability of the principal defendant.

BDW’s attempt to rely on Explanatory Notes to the BSA, suggesting that BLIOs could be made directly against associated entities, was rejected by the TCC. A BLIO could therefore only be made against Ardmore, and not any group companies. Further, a BLIO could only be granted if the Court took the view that the respondent is in fact currently liable to the applicant for a building safety related claim concerning the specified building in respect of which a BLO was being considered.

It follows that BLIO applications: “ought…to be short and uncomplicated”; do not “impose on the court any obligation to become embroiled in assessments of the merits”; and that might mean “that applications for [BLIOs] will be made sparingly in cases where liability is in issue”. Where a BLIO is made, this is likely to be narrow in scope.

BDW’s application for a BLIO, seeking 17 different categories of detailed information, was therefore dismissed in its entirety.

Insurance Implications

The significant expansion of liability exposures under the BSA has profound implications for those involved in the commissioning and construction of residential properties, and their insurers.

The extent to which claims founded on breaches of the DPA are indemnifiable under professional indemnity (PI) insurance is a contentious issue, yet to be considered by the English courts. Recent TCC decisions such as Vainker v Marbank [2024] suggest that the test for liability impliedly incorporates an assessment of ‘reasonableness’ in relation to the defendant’s conduct, consistent with the Law Commission report preceding enactment of the DPA, such that resulting legal liability in a professional capacity should, in principle, trigger coverage under PI policies.

Stakeholders operating in this sector should carefully investigate the scope of insurance cover available, to mitigate risks arising from the new systems of oversight applicable to complex buildings at the design, construction and occupational stages. Policy provisions relating to claims notification, aggregation of loss, and exclusion of claims arising from cladding, fire safety, and/or contractual liability, are particularly important and merit close attention prior to inception.

By Amy Lacey, Partner & Joanna Grant, Managing Partner

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