And so it begins!
Getting a glimpse at the future on how the courts will implement the retrospective limitation period for claims under s.1 of the DPA 1972
Seven months on from the Building Safety Act (‘BSA’) coming into force on the 28 June 2022, we begin to experience how the courts will implement the retrospective limitation period for claims under s.1 of the Defective Premises Act 1972 (‘DPA’).
The Technology and Construction Court (the TCC) in BDW Trading Ltd v AECOM infrastructure & Environment UK Ltd  allowed a previously time-barred claim under the DPA to be added to existing proceedings, in what is understood to be the first example of applying the extended retrospective 30-year limitation period for claims under s.1 of the DPA.
The defendants provided civil engineering services for 27 blocks developed by the claimant; a residential developer commonly known as Barratt. Following a series of cladding remediation works, Barratt found the structural design to be inadequate. Having commenced proceedings against the defendant, Barratt presented an application to amend their claim upon the BSA coming into force to include fresh claims which were no longer time barred:
1. A claim under s.1(1) of the DPA
- Barratt argued that their claim fits within s.1(1) of the DPA because the defendant was ‘a person taking on work for or in connection with the provision of a dwelling’ and Barratt are a person to whose order that dwelling was provided.
- The defendant submitted that Barratt could not pursue a claim by virtue of s.1(1) as they were ‘included among the persons who have taken on the work’ pursuant to s.1(4).
2. A claim under s.1 of the Civil Liability (Contribution) Act (‘CLA’) based on the defendants being liable in respect of the ‘same damage’
- Barratt contended that the homeowners in this case, whose properties were defective, were ‘another person’ who has suffered damage and they were liable to those owners in respect of such damage.
- The defendant argued that this formulation is wrong in law because the homeowners must have made a claim before s.1 can be engaged.
The general principle remains that amendments should only be allowed to permit parties to express their real case, provided this does not cause undue prejudice to the opposite party and provided also that this can be done consistently with the overriding objective.
Whilst any applicant must show some prospects of success, ‘this is a relatively low threshold’ and the court only needs to be satisfied that an amendment is reasonably arguable and not ‘fanciful ‘ in its application.
In applying this test, the court disagreed with the defendant’s submissions and accepted that there were sufficient grounds to permit Barratt to amend their claim. In doing so, the court took into consideration: -
- it was reasonably arguable that Barratt could avail themselves of s.1(1) of the DPA, and that s.1(4) was directed at ensuring that the developer cannot escape liability under the Act by asserting that it arranged for others to carry out the relevant work.
- it was reasonably arguable that s.1(1) of the CLA does not require a claim, but only liability in respect of the same damage.
It is important to note that both parties accepted that no new facts arose. Arguably, had this not been the case, it is likely that the conditions in CPR 17.4(2) would not have been satisfied and the application to amend would have been denied.
Whilst the extension of limitation raised difficult questions of interpretation, the court was content to allow the amendments to proceed, as many homeowners, developers and contractors face similar issues following the Grenfell tragedy.
It is undeniable that similar claims will follow, and those contemplating claims now resurrected by the BSA should take action before the buffer period expires on 28 June 2023.
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For further information on the services we provide or if you are impacted by the BSA and would like to discuss any issues or concerns you may have please contact a member of our Building Safety Claims team.