Building Safety – A New Category of Dispute

The Building Safety Act 2022 (“BSA”) has ushered in a new era of accountability in the built environment. Designed to address systemic failures exposed by the Grenfell Tower tragedy, the BSA introduces a raft of new and enhanced legal rights that have transformed building safety into a fertile ground for litigation. From defective construction to professional negligence, the scope for claims is broader than ever, and are not just limited to defective cladding. Parties must therefore be prepared to navigate this complex and evolving landscape.

Our sixth and final article in our Building Safety series addresses three key categories of building safety claims under the BSA: defective design and construction, leaseholder enforcement, and professional negligence.

The BSA expands the legal exposure of architects, engineers, contractors, and developers for defective works particularly where fire safety or structural integrity is compromised. Key developments include:

• Extended limitation periods under the Defective Premises Act 1972 (DPA), allowing claims up to 30 years after completion for works completed before 28 June 2022, and 15 years for works completed thereafter.
• Expanded scope of liability under Section 2A of the DPA, which now covers refurbishment and alteration works not just new builds. The Supreme Court has confirmed that developers are able to pursue contractors or professionals under the DPA where it was previously considered as recourse only for homeowners.
• Golden thread failures: Where safety-critical information is missing, flawed, or inaccessible, claimants may argue that dutyholders failed to meet their statutory obligations, giving rise to breach of duty or negligence.

Claimants should gather evidence of design flaws, non-compliance with building regulations, and gaps in the golden thread. Defendants must assess insurance coverage, contractual indemnities, and the availability of technical documentation.

The BSA empowers leaseholders to initiate claims directly against landlords and developers through new statutory mechanisms, including:

Issued by the First-tier Tribunal (Property Chamber), ROs compel landlords to carry out specified remedial works to address building safety defects. Recent decisions show tribunals are moving swiftly to enforce these obligations, especially where fire safety risks are involved. For example, in the case of Orchard House (Stephanie Culpin, Danielle Pring v Stockwood Land 2 Limited), the Tribunal accepted a Fire Risk Appraisal of External Walls (FREAW) as sufficient evidence of defects and ordered the landlord to undertake works within a specified timeframe.

These orders require associated entities, such as group companies or former developers, to contribute to the cost of remediation, even if the original developer is dissolved or insolvent. The Tribunal must be satisfied that the entity is “associated” and that it is just and equitable to make the order. In Vista Tower (Grey GR Limited Partnership v Edgewater (Stevenage) Limited and others), the Tribunal ordered 76 respondents to contribute over £13.2 million to cladding remediation costs, applying the “associated persons” test under Section 121 of the BSA.

Leaseholders should consider evidential requirements, procedural timelines, and strategic use of expert reports. Landlords must prepare for proactive defence or settlement strategies and will need to acknowledge that group companies or associated persons may also be subject to claims. Solvency of the immediate company responsible for the defective design/works will be of limited protection given the enhanced powers of the courts and tribunal to pierce the corporate veil and seek out those with the deepest pockets to contribute towards the costs of remediation.

BLOs, introduced under section 130 of the Building Safety Act 2022, empower the High Court to extend liability for building safety defects beyond the original developer or contractor to associated entities, piercing the corporate veil where it is “just and equitable” to do so. This mechanism addresses the common practice of using asset-light special purpose vehicles (SPVs) that are wound up post-development, leaving leaseholders without recourse.

In the landmark case of 381 Southwark Park Road RTM Company Ltd v Click St Andrews Ltd [2024] EWHC 3179 (TCC), the court issued its first BLO, confirming that fire safety defects such as missing fire-stopping and compartmentation failures constituted a “relevant liability” under the Act. Jefford J’s judgment clarified that BLOs may be granted even if the primary liability is disputed, provided the statutory criteria are met and the order is equitable in the circumstances.

Parties may therefore find that disputes arise in both the First-tier Tribunal and the Technology and Construction Court as the BSA specifies different jurisdictions for the ordering of ROs, RCOs and BLOs. The First-tier Tribunal and the Technology and Construction Court has set up a working group to consider practical steps and processes for concurrent claims in both for a (Building Safety Related Claims – Courts and Tribunals Judiciary).

The BSA has also widened the scope for professional negligence claims against solicitors, surveyors, managing agents, and other advisors. Common allegations include:

• Failure to advise on building safety risks during transactions or lease negotiations
• Failure to act on known defects or regulatory non-compliance
• Failure to maintain or update the golden thread, especially in higher-risk buildings

These claims may arise in both residential and commercial contexts, particularly where professionals failed to flag risks that later triggered enforcement action or remediation costs.

Parties should review internal protocols, training, and client communications to ensure building safety risks are properly identified and documented.

As the post-Grenfell regulatory and legal landscape continues to evolve, building safety claims are no longer confined to traditional defect litigation, they now encompass a broader matrix of statutory remedies, including remediation contribution orders, building liability orders, and extended limitation periods under the Defective Premises Act.

These mechanisms reflect a decisive shift in policy: from reactive enforcement to proactive accountability. For legal practitioners, developers, contractors, landlords, and claimants the challenge lies not only in navigating this complex framework but in anticipating its trajectory. With courts increasingly willing to pierce corporate structures and scrutinize historic conduct, strategic risk management and transparent remediation planning are no longer optional, they are imperative.

The future of building safety litigation will be shaped by how stakeholders respond to this recalibrated balance of power, responsibility, and redress. The BSA has created a dynamic and high-stakes litigation environment which will inevitably mean there is an increase in claims activity.

Through acting for both claimants and defendants, RWK Goodman understands the full scope of the BSA’s litigation tools and can support clients throughout this new era of building safety accountability.