Historic building defects: when an earlier time-barred claim does not prevent further proceedings

What happened?

The dispute concerns Victoria Wharf, a residential development in Cardiff comprising seven high-rise buildings. Construction was completed between 2005 and 2008.

Following investigations into fire safety, defects were alleged in elements of the buildings, including external wall systems.

Taylor Wimpey Developments Limited (TWDL), the original employer under the building contract, commenced arbitration against Taylor Woodrow Construction in 2021. Its claims included allegations under section 1 of the Defective Premises Act 1972.

In May 2022, the arbitrator determined that the contractual and DPA claims were statute-barred under the law then applicable. That decision came shortly before a significant statutory change.

The Building Safety Act changed the limitation position

Section 135 of the Building Safety Act 2022 retrospectively extended the limitation period for accrued claims under section 1 of the Defective Premises Act to 30 years. The amendment came into force on 28 June 2022.

That considerably expanded the potential period of liability for historic residential construction defects. However, the legislation also protects final determinations made before the extension took effect.

The original claimant could not reopen its DPA claim because the arbitrator had already finally determined it.

A different company, Taylor Wimpey UK Limited (TWUK), subsequently brought proceedings based on its own interest in the development. It relied on section 1(1)(b) of the DPA, which can give rights to persons acquiring an interest in a dwelling.

Taylor Woodrow applied to strike out the new proceedings as an abuse of process, arguing in substance that the Taylor Wimpey group was attempting to litigate again issues that had already been pursued in arbitration.

What did the court decide?

Mr Justice Pepperall dismissed Taylor Woodrow's strike-out application.

The court recognised that section 1 of the DPA can impose duties to more than one person. The original employer may have rights under section 1(1)(a), while a person acquiring an interest in a dwelling may have separate rights under section 1(1)(b).

Those rights do not necessarily constitute the same cause of action. Although TWDL and TWUK were closely connected companies, TWUK was relying on its own independent statutory claim. It had not been a party to the original arbitration.

The court also considered it significant that the earlier DPA claim had been dismissed on limitation grounds rather than after a determination of the underlying merits.

The decision means that TWUK's claim may proceed. It does not establish that the defendants are liable for the alleged defects. Those substantive issues remain to be determined.

Why does this matter for construction companies?

1. Historic liability may remain relevant long after practical completion

The retrospective limitation extension means that contractors, developers and design professionals may face claims concerning work completed many years ago. The age of a project is not, by itself, enough to establish that a DPA claim is time-barred.

2. Identifying the correct claimant matters

Construction developments commonly involve separate group companies holding different contractual rights, property interests and responsibilities. A company that originally commissioned the work may not be the company that later acquired the relevant property interest.

The judgment shows why those distinctions can matter when assessing statutory rights.

3. An earlier dispute does not necessarily resolve every potential claim

A previous arbitration or judgment may be decisive in relation to the parties and causes of action actually determined. It does not automatically extinguish independent statutory rights belonging to another party.

The precise corporate, contractual and procedural history therefore matters.

What should developers and contractors do?

Where historic building defects are alleged, a structured review should usually cover:

1. the identity of the original employer and each contractor or consultant;
2. the relevant building contracts and professional appointments;
3. changes in ownership and corporate structure;
4. assignments of contractual rights and evidence of notice;
5. earlier arbitrations, litigation, settlements or other final determinations;
6. practical completion dates and the applicable limitation provisions; and
7. the technical evidence supporting the alleged defects and resulting loss.

For defendants, it is important to identify precisely which claims have already been determined and whether a later claimant has genuinely independent rights.

For claimants, the existence of an extended limitation period is not enough to establish liability. The statutory duty, entitlement to enforce it, breach and loss must still be proved.

What about building liability orders?

The proceedings also include a claim for a building liability order against Vinci Construction Holding Limited, the contractor's parent company.

The Building Safety Act 2022 contains a mechanism through which certain liabilities may, in qualifying circumstances, be extended to an associated body corporate. The court did not determine whether a building liability order should be made in this judgment.

That issue is separate from the strike-out question decided by the court.

What remains uncertain?

This was a procedural judgment about whether the proceedings should continue. It was not a judgment establishing defective construction or awarding damages.

The outcome also depended on the particular corporate history, statutory rights and earlier arbitration. It should not be read as allowing an unsuccessful claim to be relitigated simply by using another company.