Building Safety Act - the first case.docx

None of this was in dispute. The question the Court had to address was whether a

developer could themselves bring a claim under the Act.

URS’s position was that a developer could not bring a claim under the DPA. They

argued that the DPA was intended to apply to lay purchasers of defective properties

only, not commercial entities.

They also suggested that it couldn’t be right that a developer could both owe duties

to other parties under the DPA, whilst also being able to claim under the DPA itself.

Put another way, a developer couldn’t sue under the DPA and be sued under it.

The Court rejected these arguments and ruled that a developer could bring a claim

under the DPA.

• Does the retrospective 30-year limitation period apply where proceedings are

underway?

Yes – the Court found nothing in the BSA that would have the effect of carving out

ongoing proceedings from the retrospective application of the longer limitation

period. Only those claims which have been finally determined or settled between the

parties would be outside the new period, which is a specific carve out in the new

legislation.

Commentary

Claims under the DPA were always going to be a developing feature of the PI claims

landscape. The question many underwriters mused was to what degree this

relatively unused piece of legislation was going to act as a catalyst for claims going

forward?

Prior to this decision, the general thinking in the industry was that the DPA primarily

existed for individuals. Whilst the extension of the liability period from 6-years to 30

years post completion of the project was going to have an impact, it was probably

unlikely to open the floodgates from individual homeowners. Indeed, as we

discussed in our earlier piece on the DPA, inviting homeowners to embark on costly

and uncertain litigation in order to secure redress was unlikely to fuel an enormous

number of claims.