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Building Safety Bill has another flaw.

The proposal to extend the limitation period to 15 years has another added complication that nobody is discussing.


Since the announcement was made two days ago that the Building Safety Bill will extend the limitation period to bring a claim under the Defective Premises Act from 6 years to 15 years, there have been numerous issues pointed out by observers (prohibitive cost of legal action; insolvent companies who can't be sued; pre-2010 buildings not covered, to name a few).


However, even if costs weren't prohibitive, and even if the original companies still exist, and even if was 30 years instead of 15, there is another added complication that nobody seems to be talking about, and it concerns the different procurement routes in construction projects, and the tangled apportionment of blame for "shoddy workmanship". Developers and their contractors have come under fire, but the debate has neglected another major party in all of this: the designers.

The complexity of the situation means the party at fault for one building may not be the same in another building. By almost always referring to suing the 'builder', we seem to be constantly overlooking the possibility in some cases that it could be the designer's fault. The type of inspection and surveys taking place by fire engineers for the purposes of EWS1 and Fire Risk Assessments only identify what the physical defect is and the risk it causes. From this, it is easy to jump to the conclusion that the contractor built it shoddily. In many cases this is probably true. But, this does not consider that in some cases, it is possible that it was built exactly as intended, and it is the design that is shoddy. If the designer incorporated poor detailing into their the plans (e.g. poorly thought out positioning of cavity barriers, insulation and sheathing board which allows fire to bypass cavity barriers) or specified incorrect materials, then this may not be "poor workmanship" on the contractor's part. I am not saying this to absolve contractors of responsibility, especially as it is clear in many cases there has been poor workmanship or product substitution on site; I'm just warning that as leaseholders with our judgement clouded by anger and emotion, we need to be careful not to automatically assume it is always a build fault, as it may come back to bite in the most painful way.


It is worth briefly explaining the two main procurement routes in construction projects:


1) In a "Traditional" procurement, a developer would procure a design directly from an architecture/engineering consultancy, and would then give these drawings and plans to a separately procured contractor to build. Both the designer and the contractor are directly and separately contracted to the developer. The contractor has no design responsibility, no contractual relationship with the design consultancies, and only builds what they are told via contract documentation.


2) In a "Design & Build" procurement, a developer procures a contractor first, and the contractor is contractually responsible for then procuring the design before they build it. The design work is rarely carried out in-house, so the contractor typically sub-contracts the design to the same type of consultancies who would be involved in the traditional approach. The key difference is who has contractually employed who. Now, the contractor does carry liability for the design, and it is the developer who has no contractual relationship with the design consultancies.


Both these procurement routes are common in the UK and it would be important to understand how your building was developed and the impact this has on legal action.


If a building was procured via a Design & Build route, this may be slightly simpler on the claimant's part, because the case would probably be against the contractor regardless. If it turned out to be a design issue, this may not be sufficient defence for the contractor, since they procured and own the design. The contractor may subsequently need to take its own action against the designers which it had contractual relationship with, but this would not be the claimant's concern.


If however the building was procured via a Traditional route, this could be a legal quagmire for the claimant. The burden of proof on leaseholders to understand who is at fault and where different contractual lines lie will take some serious unpicking just to know who to sue. You would need to be absolutely sure who is at fault (whether it is a design issue or construction issue) before mistakenly taking out lengthy and costly legal action against a contractor who could rely on a defence of poor design. This may prove problematic especially for buildings with poor records of design plans, drawings and specifications. In some cases, there could even be a mix of non-compliant design combined with compliant design that is shoddily built, resulting in a situation of needing to sue multiple parties separately for the different parts they played.


On top of that are materials which are only retrospectively non-compliant due to government Advice Notes, where there is no case to sue anybody (these are typically the BSF-eligible problems, but only covered for 18m+). Overall you could have a building with issues falling into three different categories, each requiring their own remedy, on different timelines and managed as separate mini-projects within the overall remediation project.


Ultimately, I think this extra layer of complexity makes it even more difficult, bordering on impossible, for the majority of buildings to take legal action, and demonstrates why the government's current proposals are not the solution. Cynically, I believe the government is intending to "put the power in leaseholders' hands" because they know how horrifically complicated it is, and they want to wash their hands of the problem.


P.S. the Design & Build versus Traditional procurement routes discussed above are also extremely relevant to your remedial works and BSF strategy, each with pros and cons. In addition, if you have a combination of BSF-eligible and non-eligible works, I can advise how to structure your project better while the Building Safety Bill debate plays out. There are multiple ways to run and organise your project to get to the end result. If you are are in a position of responsibility (e.g. RMC Directors), arrange an advice session with me (via the contact page) to discuss this in more detail. I can aid with defining the scope of your project, advising you on the type of companies you should appoint depending on procurement route, and set strategy before they dive head-first into a solution that is a poor approach for leaseholders. I've done it for my own apartment block.

 

If you have discovered fire safety issues with your external walls, Clad To Help provides strategic advice from a leaseholder, RMC Director, Chartered Engineer and Project Management Expert who has directed his own apartment block through the highly complex Building Safety Fund process. For support which protects leaseholders and offers cost and time saving strategies, please contact Scott@cladtohelp.co.uk to arrange an initial chat.


This blog post is purely for informational purposes and is not legal advice. This information is provided in good faith and we assume no responsibility or liability for any errors or omissions in the content. Under no circumstances will Clad To Help Ltd be held responsible or liable in any way for any claims, damages, losses, expenses, costs or liabilities whatsoever resulting or arising directly or indirectly from the use of or reliance on the information or arising from your inability to use or access the information. Full Copyright Notice available at www.cladtohelp.co.uk. All rights reserved.

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