Opening The Floodgates? Potential Parties to Claims under the Building Safety Act 2022

David Sawtell and Samantha Jones

May 2023

A paper presented to the Society of Construction Law in Cardiff on 24 November 2022 and in Oxford on 22 February 2023

The paper looks in detail at the Building Safety Act 2022, which now, after a late change to the Bill, includes a range of causes of action that allow a claimant to seek compensation from a much wider potential pool of defendants. It is now possible to establish liability as a secondary party through the new concept of ‘associate’ liability. The paper examines how the Building Safety Act 2022 allows a claimant to obtain orders from the First-tier Tribunal for the compulsory remediation of their building, together with remediation contribution orders from a potentially wide range of parties. The authors consider how the loose control mechanism of ‘just and equitable’ for these orders might be interpreted, as well as how to establish who might be an ‘associate’.

Introduction – Part 1: imposing boundaries on liability – The end of the ‘heroic age’ of tort – The Defective Premises Act 1972 and the potential pool of defendants – Antecedents to the Building Safety Act: the Hackitt Report, the Bill and amendments – Part 2: the new regime for civil liability in the TCC – Amendments to the Defective Premises Act 1972– Building liability orders – Orders for information – Section 38 of the Building Act 1984 – Liability for construction products – Part 3: the new remediation regime in the First-tier Tribunal – Introduction – The legislative framework – The requirements for a compliant application – The FTT’s procedural rules – Evidential Requirements – Remediation contribution orders – Insolvent landlords – The relationship with Schedule 8 and amendments to the Landlord and Tenant Act 1985 – Part 4: the test of ‘just and equitable’ – Comparison with the Civil Liability (Contribution) Act 1978 – The comparison with Daejan Investments v Benson  – Part 5: the test of ‘associate’ – Framework of the test of ‘associate’ in section 121 and section 131 – Evidential Issues – Conclusion

The authors: David Sawtell and Samantha Jones are barristers practising from 39 Essex Chambers

Text: 36 pages