Supreme Court decision in URS v BDW – what it means for you
This case arises against the backdrop of the Grenfell Tower disaster and the Government’s focus on improving building safety, culminating in the Building Safety Act 2022 (BSA). The judgment provides clear guidance on how liability is allocated between developers and consultants and the retrospective application of the BSA.
Summary of the Case
BDW Trading Ltd (developer of Barratt and David Wilson Homes) discovered structural defects in two high-rise developments designed by URS Corporation Ltd (consulting engineers). Although BDW no longer owned the developments and was not legally compelled to carry out the works, it undertook repairs due to safety concerns.
BDW sought to recover those costs from URS via claims in negligence, under the Defective Premises Act 1972 (DPA), and for contribution under the Civil Liability (Contribution) Act 1978.
The Supreme Court's key findings
Recovery for Voluntary Repairs - BDW’s actions were not legally required, but they were reasonable given the risks to life and safety. The Court rejected the idea that "voluntary" repairs automatically fall outside the scope of recoverable losses.
Retrospective Extension of Limitation Period - The 30-year limitation period under s.135 BSA applies not only to DPA claims but also to related negligence and contribution claims. This allows claims for historical defects, providing substantial relief for developers tackling legacy safety issues.
DPA Duty Owed to Developers - Consultants can owe a statutory duty under s.1 DPA to developers, not just future occupiers or purchasers. BDW, as the commissioning party and first owner, fell within the protected class.
Contribution Claims Allowed Without Prior Legal Action - BDW was entitled to claim a contribution from URS even though no homeowners had sued BDW. The act of paying for repairs was sufficient to trigger the right to contribution.
What This Means for You
- Developers can now recover costs for proactive safety repairs even if:
- They no longer own the building.
- They were not sued by third parties.
- Any third-party claims would otherwise have been time-barred.
- Consultants and Contractors face heightened historical liability exposure, especially where projects involved residential dwellings.
- The BSA’s retrospective provisions significantly extend potential liability windows. Past assumptions about limitation periods may no longer hold.
- Claims for contribution can proceed without prior settlement or court action by third parties, as long as the paying party has mitigated the loss themselves.
Practical next steps
Review historic projects: Consider whether there are any latent defect exposures under the DPA or common law that may now be actionable.
Audit consultant appointments and design records: Ensure clear documentation and indemnities are in place for past and ongoing projects.
Consider remediation strategies: developers contemplating voluntary repair work may still preserve recovery rights, provided action is reasonable and well-documented.