URS Corporation Ltd (Appellant) v BDW Trading Ltd (Respondent) [2025] UKSC 21
The judgment of the Supreme Court in this case has been handed down today 21 May 2025, dismissing URS’s appeal on all four grounds. Camilla Chorfi was part of the team instructed by the Secretary of State as an intervening party.
On Ground 1, as regards the loss suffered by BDW the developer, comprising the costs of repairs to the two developments in issue, the Supreme Court rejected the proposition that there is a voluntariness principle that applies, through concepts of duty or remoteness, to rule out recovery of those costs incurred by BDW. The Court concluded that the role of any principle of voluntariness is limited instead to issues of causation and mitigation, in respect of which there was no issue on the assumed facts of the appeal.
On Ground 2, retrospectivity; the Supreme Court rejected URS’s argument that in accordance with the presumption against retrospectivity s.135 was subject to an implied exception relating to ‘collateral issues’; URS abandoned its arguments that s.135 did not apply retrospectively in relation to claims which were ongoing at the time the BSA came into force and that the ‘finally determined’ exception applied.
Importantly in this regard the Supreme Court considered the policy and purpose of the BSA at [78]-[84]. Further, at [85]-[87] the Court identified the main changes to the law in order to address the problem of historical building safety defects as comprising four sets of provisions, s.135, s.124 and the broader suite of ‘leaseholder protections’ at 116 to 124 and Schedule 8, s.130 and ss.147 to 151, and (at [87]) stated unequivocally that ‘All four sets of provisions have retrospective effect.’ A statement that will presumably be relevant to the judgments pending from the Court of Appeal in the Triathlon and Hippersley appeals.
On Ground 3, did URS owe a duty to BDW under section 1(1)(a) of the DPA and, if so, were BDW’s alleged losses of a type which are recoverable for breach of that duty; the Court held, contrary to URS’s arguments, that a duty was owed and the type of loss, comprising the costs of repair to the developments, was recoverable. Once it was accepted that a duty was owed to BDW under s.1(1)(a) as the person to whose ‘order’ the work was carried out, there was no sense in limiting the type of damage to that arising as a result of the ownership of a dwelling which was unfit for habitation.
Finally, on Ground 4, was BDW entitled to bring a claim against URS pursuant to s.1 of the Contribution Act notwithstanding there was no judgment or settlement between BDW and any third party and no third party had ever asserted any claim against BDW; the Court, agreeing with the judgment of Lord Leggatt [209]-[299] in this regard, gave an affirmative answer and dismissed this ground also. Given the retrospective effect of section 4B(4) of the Limitation Act 1980, it would defeat the purpose of the legislation not to interpret it as enabling BDW to recover contribution from URS in respect of remedial work done before as well as after s.135 came into force.
You can read the judgment here.
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