What happens if a developer takes steps to carry out remedial works to address building safety issues even if no claim has yet been intimated by the owners/occupiers? Are those costs incurred “voluntarily”, such that the developer cannot seek to recover those costs from others? These are some of the issues which the Supreme Court has recently ruled on.

In the landmark case of URS v BDW [2025] UKSC 21, the Supreme Court considered a number of significant issues for developers, design engineers and other construction parties. Among the issues in contention was the application of section 135 of the Building Safety Act 2022 (“BSA”), which introduced a ‘special time limit for certain actions in respect of damage or defects in relation to buildings’, as well as the recoverability of alleged ‘voluntarily’ incurred repair costs.

The case concerned remedial works which had been carried out for safety defects. The respondent was BDW Trading Ltd (“BDW”), a well-known property developer trading under such names such as Barratt Homes and David Wilson Homes. The appellant was URS Corporation Ltd (“URS”), a company that provides consulting engineering services. In 2020, BDW had carried out remedial works on two sets of multiple high-rise residential building developments within which design defects had been discovered. No negligence claims had at that stage been made against BDW by the owners/occupiers of the building, and in any case any such claims would at the time have been time-barred.

A negligence claim was subsequently brought by BDW against URS to recover the costs of the remedial works. A trial on preliminary issues took place in October 2021, and it was held amongst other points that the scope of URS’s duty of care included the losses claimed and issues of legal causation and mitigation should be determined at trial.

However, in June 2022, section 135 of the BSA came into force, which introduced extended periods for building defect claims. Subsequently, BDW applied to the court to amend its claim to bring new arguments against URS under this provision and under the Civil Liability (Contribution) Act 1978 (“CLCA”).

The application was granted. However, URS then subsequently appealed the preliminary issue and the amendment decisions. The appeal made its way to the Supreme Court on four grounds.

The Supreme Court’s judgement

Ground 1: In relation to BDW’s claim of negligence against URS, had BDW suffered actionable and recoverable damage or was the damage outside the scope of the duty of care and/or too remote because it was voluntarily incurred?

It was not disputed that URS was in breach of its duty of care owed to BDW in respect of the structural designs of the developments and that, in order to remedy this breach, BDW had incurred losses. However, URS submitted that because the repairs were carried out by BDW at a time when the developments no longer belonged to it and without any enforceable legal obligation to do so, the loss suffered was outside the scope of URS’ duty of care and/or was too remote. URS relied on the “voluntariness principle” which it argued provided a clear rule of law for analysing remoteness.  

The Court rejected this argument on three primary grounds:

1. Taking into account the risks of personal injury or death to the homeowners if BDW did not act, it was strongly arguable that BDW did not perform the repairs voluntarily.
2. BDW had a legal liability to the homeowners under the Defective Premises Act 1972 (“DPA”) or in contract to incur the cost of the repairs.
3. There would have been potential reputational damage to BDW if BDW did nothing once it knew of the danger to homeowners.

In conclusion, the court found that BDW had no realistic alternative but to carry out the repairs. Taking the above three features together, BDW was not in any true sense acting ‘voluntarily’.

Ground 2: Section 135 of the BSA came into force on 28 June 2022 and retrospectively extended the limitation period for accrued claims under section 1 of the DPA from six years to up to 30 years. The question for the court was, did this apply to the circumstances of this case and what effect did it have?

It was agreed that s135 of the BSA applies to a claim brought under s1 of the DPA. The issue was whether the retrospectivity of s135(3) applies to other claims which are dependant on time bar under s1 of the DPA. In this regard, the court held that the wording in the title of s135(1) reflected this and provided context for s135(3). Taking these words in context there was no reason to restrict s135(3) to actions under s1 of the DPA. It also found that a central purpose of the BSA was to ensure that those responsible for historic building safety defects can be held to account and this would be undermined if s135(3) BSA were restricted.

Ground 3: Did URS owe a duty to BDW under s1(1)(a) DPA and, if so, were BDW’s alleged losses of a type which were recoverable?

The court considered the wider context of the words of the relevant provision and found that they should be read as applying to every person who “acquires an interest” in a dwelling. The court rejected URS’s position that the context of the DPA distinguishes between those who owe DPA duties and those to whom they are owed, such that a person who owes a duty under the DPA cannot simultaneously be owed a duty. There is no reason why a developer cannot both owe a duty and be owed a duty. The court held that URS did therefore owe BDW a duty and repair costs were a recoverable type of loss.

Ground 4: whether BDW could bring a claim under s1 of the CLCA.

The court held that BDW was not prevented from bringing a claim for contribution against URS by the fact that there has been no judgement, third-party settlement or claim asserted against BDW. The correct interpretation is that the right to contribution arises when: (i) damage has been suffered by a claimant for which defender one and defender two are each liable; and (ii) defender one has paid or been ordered or agreed to pay compensation for the damage to the claimant. At that point, but not before, defender one is entitled to recover contribution from defender two. The court ultimately found that BDW performing the remedial works (as compensation by payment in kind) was sufficient for them to bring a claim pursuant to s1 of the CLCA.

Where does that leave the construction sector?

It is evident that this judgment will have far reaching implications for the sector. The Supreme Court’s decision on each of the grounds of appeal would appear to widen the scope of potential liability for contractors and construction professionals in terms of: (i) the scope of the special time period for claims under the BSA; (ii) the ability for developers to be owed duties under the DPA; (iii) repair costs undertaken in the absence of third-party claims still potentially being reasonable and recoverable; and (iv) contribution under the CLCA not requiring a judgment, settlement or claim.

This widened scope is in line with the Supreme Court’s purposive approach to interpretation of the BSA, and the court noted “ensuring that those directly responsible for building safety defects are held to account was central to the BSA”. It will not be welcome for contractors and construction professionals such as engineers (and their insurers) who may now face the possibility of potential claims/liabilities.  However, developers may be pleased to have some further comfort on potential routes for relief should building defects arise. The judgment arguably also provides some further incentive to developers to carry out repairs, removing danger to homeowners and reducing reputational risks, safe (or at least safer!) in the knowledge that there is a potential route for recovery.

Our Building Safety Group brings together specialists in construction, real estate, health & safety law and dispute resolution to help clients navigate this complex area of law. If you would like to discuss any of the issues raise in this article, please get in touch. 

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