The Building Safety Act 2022 - key issues for litigators (part 2)

The Building Safety Act (the Act) was enacted in April 2022, almost 5 years after the Grenfell tragedy, the catalyst for the Act.

The Act is a long and detailed piece of legislation. It is accompanied by explanatory notes which help to explain some of the reasoning behind many of the sections. 

The Act introduces two new claims:

• Construction products claims
• Extension of the Defective Premises Act 1972 by way of a new section 2A

There is also reference to section 38 of the Building Act 1984, but this is not in force as yet.

Construction product claims (section 147 to 149 of the Act)

This part of the Act relates to a building which consists of either a) a dwelling or b) a building which contains one or more dwellings. It has no height requirement.

Anyone with a legal or equitable interest in either of these types of buildings can bring claims for personal injury, damage to property or economic loss (such as the cost of any remedial works) if they meet the following four conditions, listed at A to D in the Act in respect of construction products.  
“Construction products” is quite widely defined as:

“any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for construction works”

So, it includes anything which is intended to be, and is, installed in a building as part of construction works.

The four conditions (A-D) are:

• Condition A - that before (in relation to cladding product claims) and after (in relation to other construction product claims) 28 June 2022 a person meets one of the following three requirements:

1. manufactures a construction product that is inherently defective
2. markets or supplies a construction product making a misleading statement in relation to it
3. fails to comply with a construction product requirement

It seems quite likely that the manufacturer of a construction product may well also be responsible for the product literature so could fall under either A) or B) above.

• Condition B – after condition A is met the construction product is installed in or applied or attached to one of the buildings mentioned above in the course of works carried out in the construction of, or otherwise in relation to the building.
• Condition C - when the works are complete the building or dwelling is unfit for habitation.  ‘Unfit for habitation’ is wording which is also used in the Defective Premises Act 1972.  This is not limited to mould or damp, but it is appears is also intended to cover the situation when a person is at risk from fire or structural collapse. 
• Condition D - that the facts in Condition A were the cause or one of the causes of the building or dwelling being unfit for habitation. It does not have to be the sole or even the main cause.

The Act (and the explanatory notes) make it clear that this new liability for construction products cannot be excluded by contractual terms.

Defective Premises Act 1972 – new claim section 2A (section 134 of the Act)

Section 1(1) of the Defective Premises Act 1972 (DPA), which has always been part of the DPA,  provides that a person taking on work for or in connection with the provision of a dwelling owes a duty a)  to those for whom the work is undertaken; and b) every person with a legal or equitable interest in the dwelling,  to see that the work which they do is  done in a workmanlike or, as the case may be, professional manner, with proper materials and so that the dwelling will be fit for habitation when completed.

What section 1(1) does not cover is the situation where the works involved are not  the initial construction of a dwelling or building, but works to an existing dwelling or building such as extension or refurbishment works.  A new claim introduced by section 2A of the Defective Premises covers such circumstances. This covers the Grenfell situation where the original tower block was constructed in the 1960’s.  The cladding works to the exterior of the building took place in 2015/2016.

Section 38 of the Building Act 1984 – new claim (not yet in force)

This provides for a new cause of action for damage (personal injury or damage to property) caused by a breach of a duty imposed by building regulations. This is intended to apply to all buildings and not just dwellings.

The Act refers to section 38, but at the moment there is no indication as to when this might come into force. 

Conclusion 

The Building Safety Act deals with issues directly arising from Grenfell.  It gives us an indication that the government is prepared to change some established legal principles (including the introduction of new claims) to achieve this, but also to address wider issues within the construction (and construction products) industry. 

This note deals just with the new claims introduced by the Act. If you would like to read about how the Act pierces the corporate veil or the increases to the limitation period for certain claims, click here for piercing the corporate veil and here for limitation periods. If you would like to know more about the Building Safety Act generally do sign up to our construction blog and search under fire safety issues (including cladding) or follow our construction and engineering LinkedIn page.