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Building Safety Act “already changing the legal landscape” states BESA

29 January 2024

ACCORDING TO the Building Engineering Services Association (BESA), 2024 will witness “significant change” to the legal liabilities of building services contractors because of new powers introduced under the Building Safety Act 2022. The “dramatic extension” of the claims period for defects from six to 30 years is the standout potential legal issue for contractors as it substantially redraws the 1972 Defective Premises Act.

The implications for supply chains are profound, states BESA, with the 30-year limitation applying to projects completed before the Building Safety Act came into force in June 2022. The limitation period for projects completed after that date is 15 years.

Anyone involved in the design, construction and management of a residential building should keep this on their radar, the Association believes, although the practical and insurance issues are considerable.

“In theory, at least, companies could be asked for project records dating back three decades,” noted Rachel Davidson, BESA’s director of specialist knowledge. “Before the Building Safety Act, documents would most likely have been retained for up to 12 years in line with industry Best Practice in relation to the law and then destroyed.”

Davidson continued: “Digital record keeping was not the powerful tool it is today so many firms may find it hard to dig out the necessary information if instructed to do so by a court. Also, there will have been wholesale staff changes over that time, so it will often be impossible to rely on the recollections of key individuals.”

Insurance equation

In addition, Davidson pointed out that many of the parties involved may no longer be trading, while others could lack adequate insurance cover.

The Building Safety Act 2022 has also introduced a new wide-reaching instrument called the Building Liability Order, which allows so-called ‘associate’ companies to be prosecuted alongside the main defendant in a construction-centred dispute.

This is primarily aimed at large firms and Tier One contractors who may have used ‘special purpose vehicles’ to carry out projects and these may not have their own funds to pay out any compensation. The Building Liability Order allows lawyers to “pierce the corporate veil” to establish who is ultimately responsible for a failed project and ensure they meet any liabilities.

Product quality will come under renewed scrutiny this year because of changes introduced by the Building Safety Act, with manufacturers particularly targeted if they make unsubstantiated claims for their equipment.

Launching claims

The Building Safety Act makes it easier for end clients and developers, etc to launch claims directly against product suppliers and for contractors to seek redress from manufacturers or deflect some blame as part of their own defence.

“Contractors will have to ready themselves to face more forensic legal scrutiny, particularly so in terms of their long-term liabilities,” observed Debbie Petford, BESA’s director of legal and commercial affairs. “BESA members do have access to an expert legal team who are carefully tracking the Building Safety Act and its implications and will be able to offer advice on dealing with any claims.”

*Further information is available online at www.thebesa.com