Two appeals

URS appealed The TCC decision on three grounds.

Ground 1

This took issue with the judge’s conclusion that the BDW’s losses were within the scope of URS’ duty.

Ground 2

The trial judge should have concluded that the cause of action did not accrue at the date of practical completion, but when the defects were discovered, later in 2019 (which would have meant that BDW would not have suffered the loss required to complete a cause of action in negligence).

Ground 3

A ‘catch-all’ to the effect that the trial judge had erred in not striking out BDW’s claim as disclosing no reasonable cause of action.

The First Appeal

In January 2022, Lord Justice Coulson (Coulson LJ) granted URS permission to appeal against the decision of Fraser J on all three grounds – the First Appeal.

The Building Safety Act 2022

A little over three months later, the Building Safety Act 2022 (BSA) received Royal Assent. A further two months later, in June 2022, Section 135 of the BSA (Section 135) came into force effecting one of the most significant changes provided for by the BSA, which is the extension of the limitation periods for claims under section 1 of the DPA (relating to the “provision” of a dwelling and applying where the dwelling is not “fit for habitation”).

The Second Appeal

BDW argued that, since the TCC decision of October 2021 was handed down:

  1. In accordance with the newly extended limitation periods provided for in the BSA, BDW were able to pursue a claim against URS under the DPA – a claim not previously made: Section 135 retrospectively extends the relevant limitation period to one of 30 years; and
  2. It had a claim under the Civil Liability (Contribution) Act 1978 (Contribution Act): it is interesting to note that, in his judgment of February 2023, Coulson LJ commented that “ … it is not immediately apparent how that was triggered by the coming into force of the Building Safety Act”.

BDW sought to amend their pleadings and their applications to amend were allowed by Mr Adrian Williamson KC, sitting as a Deputy High Court Judge) in three categories

  1. in the existing negligence claim – to make it clear that any claims under the DPA, made by the owners of the affected buildings against BDW, would not have been, and had never been, time barred, given the terms of Section 135;
  2. to add a claim under s 1(1)(a) DPA – as such a claim was not, and never had been, time-barred, given the terms of Section135; and
  3. to add a claim under s 1(1) of the Contribution Act – given that both BDW and URS were liable to the building owners under the DPA, and that BDW had “not ever ceased to be liable” for the purposes of s 1(2) of the Contribution Act, given the terms of Section 135.

Conjoined Appeals

In a judgment handed down in February this year, Coulson LJ gave permission for the two appeals to be heard together as (i) they were so “closely entwined” and it was “impossible sensibly to disentangle them”, (ii) there was a potential detriment to URS if the amendments to BDW’s pleadings were simply allowed to stand and (iii) Section 135 is novel and the issues to which it gives rise have never been considered before.

The Appeals were heard in April and judgment was handed down in July. The leading judgment was given by Coulson LJ.

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