In April 2023, the court will determine the impact of the Building Safety Act 2022 on prior claims in a decision which will be of considerable interest to all involved in property development.
In URS Corporation Ltd v BDW Trading Ltd [2023] EWCA Civ 189 – a claim for negligence for defective design work by the respondent developers against the appellant structural engineers – the court has determined that an appeal on limitation issues is not academic following implementation of extended limitation periods under the 2022 Act and that there should be full argument on whether or not the respondents should have been permitted to amend their pleadings to include claims which were only available after implementation of the 2022 Act.
Following the Grenfell Tower disaster in 2017, the respondents carried out extensive investigations into the safety of buildings they had built. They claimed structural defects were found in a number of blocks for which the appellants had provided engineering designs between 2005 and 2012.
The appellants argued the respondents had sustained no loss because any cause of action accrued in 2019 when the allegedly defective design was discovered, at which date the respondents no longer had a proprietary interest in the buildings, no obligation to remedy the defects and no liability to third parties because of limitation.
In October 2021, the respondents obtained judgment on preliminary issues of law on assumed facts, including the “no loss” point, the judge deciding that their cause of action accrued no later than the date of practical completion of each of the blocks and that the scope of the appellants’ duties extended to the alleged losses which were in principle, recoverable. The appellants’ appeal will be heard in April 2023.
The 2022 Act came into force on 28 June 2022. Section 135 has the effect of extending the time for claims under the Defective Premises Act 1972 from 15 years to 30 years unless – under section 135(6) – a claim was settled or determined by the court before the section came into force.
Consequently, the respondents claimed to be entitled to pursue a claim, not previously made, under the 1972 Act and argued the assumed facts underlying the “no loss” point no longer applied. They obtained permission to amend their pleadings accordingly.
The appellants argued that if their appeal succeeded the claim would be struck out for the purposes of section 135(6) and that the wrong test had been applied in allowing the amendments which risked excluding an argument under section 135(6). They were granted permission to appeal the amendment orders with both appeals to be heard together.
Louise Clark is a property law consultant and mediator
