Emerging caselaw on Building Safety and Post-Grenfell Remediation

As discussed in our accompanying article on the Government’s latest progress report on implementing the Grenfell Tower Inquiry recommendations, regulatory reform continues to reshape the building safety regime. Alongside these reforms, the courts are increasingly defining the legal framework governing liability for historic building defects and remediation costs.

A number of recent decisions in the Technology and Construction Court and the appellate courts illustrate how liability for post-Grenfell remediation is likely to be allocated across developers, contractors and consultants.

Recoverability of remediation costs: URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21

• The most significant development to date is the Supreme Court decision in URS Corporation Ltd v BDW Trading Ltd.
• The dispute concerned a developer seeking to recover the costs of remedial works undertaken to address structural defects in residential developments designed by engineering consultants. Importantly, the remedial works were carried out by the developer voluntarily before any claim had been brought against the developer by building owners or residents. 
• URS argued that BDW had suffered no actionable loss because the repairs had been undertaken voluntarily and because BDW no longer owned the properties.
• The Supreme Court rejected those arguments. It confirmed that a claimant may suffer recoverable loss where it incurs reasonable costs to remedy a dangerous defect for which another party is legally responsible, even where those works are undertaken voluntarily and before third-party claims arise. The decision also clarified that developers may pursue such claims even where they no longer retain a proprietary interest in the building. 
• However, the decision does not create an unfettered right of recovery. The Supreme Court emphasised that recoverability remains subject to orthodox principles of causation and mitigation. In particular, a claimant will only recover costs that were reasonably incurred and will not be able to recover losses that are excessive, unnecessary, or which break the chain of causation.
• The judgment is widely regarded as a landmark decision clarifying the scope of recoverable loss in construction negligence claims and is likely to have significant implications for professional indemnity exposure across the sector.
  

Adjudication and statutory claims: BDW Trading Ltd v Ardmore Construction Ltd [2024] EWHC 3235 (TCC)

• Following adjudication proceedings, the adjudicator ordered Ardmore to pay approximately £14.5 million for breaches of contract and the Defective Premises Act 1972.
• Ardmore resisted enforcement, arguing that the adjudicator lacked jurisdiction because the statutory Defective Premises Act claim did not arise “under the contract".
• The Technology and Construction Court rejected this argument and enforced the adjudicator’s decision, holding that contractual adjudication clauses referring to disputes “under the contract” were sufficiently broad to encompass statutory claims arising from the same construction works.
• The decision is particularly significant in the post-Grenfell context because the Building Safety Act 2022 extended the limitation period for Defective Premises Act claims to 30 years retrospectively, meaning many historic defects may now be pursued through adjudication.

Building Liability Orders: Willmott Dixon Construction Ltd v Prater Ltd [2024] EWHC 1190 (TCC)

• The court considered claims exceeding £40 million relating to alleged fire safety defects in the external wall system of a mixed-use development in Woolwich.
• The proceedings involved multiple parties across the construction supply chain and are notable for addressing the operation of Building Liability Orders (BLOs) under the Building Safety Act 2022. BLOs allow the High Court to extend liability for building safety defects to associated corporate entities where it is just and equitable to do so. This represents a significant shift in the law, allowing courts to reach beyond the immediate contracting party where liability might otherwise be limited by corporate group structures.  
• The court’s approach confirms that associated entities will not necessarily be able to re-litigate underlying liability findings determined in earlier proceedings. Although there is no strict requirement to join associated parties to the original liability proceedings, the court indicated that, in practice, it will often be sensible for those issues to be determined together.
• The decision signals a more interventionist approach to corporate structuring in the building safety context and materially increases the risk that liability will be spread across wider corporate groups.

Remediation Contribution Orders

• A milestone decision from the Court of Appeal involving litigation relating to cladding remediation at the East Village (former Olympic Village) development. 
• The litigation centres on a remediation contribution order made under the Building Safety Act requiring the freeholder to contribute towards remediation costs despite not being responsible for the original construction of the buildings.
• The Court of Appeal upheld the tribunal’s decision, emphasising the broad and purposive approach adopted by the Building Safety Act in allocating responsibility for remediation costs.
• The case raises significant questions regarding the retrospective reach of the Building Safety Act and the extent to which current building owners may be required to fund historic defects. It also highlights the breadth of the concept of “associated persons”, which is capable of capturing a wide range of corporate relationships, particularly when contrasted with earlier authorities such as 381 Southwark Park Road v Click St Andrew’s.
• The decision is currently subject to a further appeal to the Supreme Court, which is awaiting a hearing date.

Remediation orders and building guarantee policies: Tobias v Grosvenor Freeholds (The Central) (FTT) (LON/00AG/BSA/2024/0008)

• A central issue in dispute was whether it was appropriate to make a remediation order at all in circumstances where the landlord had the benefit of an insurance-backed scheme (the AmTrust policy), which was said to provide a route to fund the remediation works. The landlord argued, in substance, that the existence of that policy meant a remediation order was unnecessary or inappropriate, given that the costs could be met through insurance rather than by imposing statutory obligations.
• The Tribunal rejected any suggestion that the existence of insurance would, of itself, preclude the making of a remediation order. The focus of the statutory regime is on ensuring that relevant defects are remedied, and that appropriate parties are placed under a binding obligation to carry out those works within a defined timeframe. The availability of insurance may be relevant in a practical sense (particularly in demonstrating that funding is available) but it does not displace the statutory objective or remove the need for a formal order where one is otherwise justified.
• Importantly, the Tribunal’s approach indicates that remediation orders are not merely a “last resort” where no other funding route exists. Rather, they are a primary enforcement mechanism designed to secure timely remediation, irrespective of whether the respondent may subsequently seek to rely on insurance or other third-party funding to meet the costs.
• The decision also highlights a potential tension for building owners and their insurers. While insurance may ultimately respond to the cost of works, the existence of a remediation order fixes responsibility squarely on the respondent, who must then manage any recovery or indemnity position separately. In that sense, the statutory regime operates independently of (and, in practice, may cut across) insurance structures.
• The practical implication is that parties cannot expect to resist or defer remediation orders simply by pointing to insurance arrangements. Instead, those arrangements are likely to operate in the background, funding compliance with an order rather than avoiding it altogether.

These cases illustrate how the courts are progressively shaping the liability framework for historic building safety defects and remediation works. Together with the regulatory reforms discussed in our companion article on the Government’s Grenfell Inquiry progress report, they demonstrate the significant shift taking place in the legal landscape governing building safety.