In our BSA Update 2 I asked whether an application for a Building Liability Order under s130 of the Building Safety Act 2022 (BSA) is subject to any limitation period.1
I identified two possibilities: that the remedy is time-barred once the underlying “relevant liability” is time-barred, or that no statutory limitation period applies at all, so that the expiry of time on the relevant liability is no more than a factor in the just and equitable test. I preferred the second, essentially on the construction of the words “relevant liability”.
The Supreme Court has since decided THG Plc v Zedra Trust Company (Jersey) Ltd [2026] UKSC 6, a case about unfair prejudice petitions which has nothing whatever to do with buildings. However, unfair prejudice petitions have some similarities to building liability orders (BLOs) and remediation contribution orders (RCOs). The Supreme Court carried out a detailed analysis of the Limitation Act 1980, focussing on section 8 (actions on a “specialty”: 12-year limitation period) and section 9 (actions for “any sum recoverable by virtue of any enactment”: 6-year limitation period). The Court held, by a majority, that unfair prejudice petitions fall outside the statutory limitation regime altogether. The Court held, by a majority, that unfair prejudice petitions fall outside the statutory limitation regime altogether.
Zedra therefore casts some light on the possible approach of the Court to the issue of limitation under s130 of the BSA.
Zedra
Zedra concerned relief under ss994 to 996 of the Companies Act 2006. These sections deal with the situation in which a member considers that the company’s affairs are being conducted in a manner unfairly prejudicial to members. As set out in Zedra,2 the sections do not create any substantive obligations and the conduct complained of will usually involve the breach of an obligation arising elsewhere (for example a director’s fiduciary duty or the articles) but it need not involve the breach of any enforceable obligation at all, because what must be established is unfair prejudice rather than a wrong. What the sections provide is relief in respect of a state of affairs. If the petition is well founded, s996(1) empowers the court to “make such order as it thinks fit for giving relief in respect of the matters complained of”, with a very wide discretion as to what that order might be (including relief which no party has sought). This can include an order for payment of a sum of money.
The Supreme Court (so that we don’t have to) went back to the thirteenth century in order to consider the meaning of an “action on a specialty” under s8 of the Limitation Act. It held that s8 includes an action on a statute3 as well as on a deed, but “it is of the essence of an action upon a specialty that it is an action to enforce an obligation created by a deed or statute”, and the section does not extend “to embrace all proceedings for which a statute may make provision.”4 A mere statutory right to bring proceedings is not enough to amount to an action on a specialty.5 Sections 994-996 create no such obligation: for example, breach of a director’s fiduciary duties may found a petition for relief, but those sections do not impose those duties. Likewise for breaches of the articles of association of the relevant company.6 This meant s8 did not apply.7
There is a division within the Court on the scope of s8. Lord Hodge and Lord Richards considered, obiter, that actions on a specialty are confined to actions to enforce a statutory obligation to pay money.8 Lord Lloyd-Jones and Lord Briggs thought s8 does apply to non-monetary statutory obligations, though not to unfair prejudice petitions under ss994-996 because those provisions create no obligation. The Court declined to decide the point.9 Only Lord Burrows, dissenting, would have held that s8 catches statutory remedies generally.
The Supreme Court went on to hold that, on the wording of s9, it operates as a carve out from s8 (and applies the shorter limitation period) for “any sum recoverable by virtue of any enactment.” This is not confined to statutory debts and extends to unascertained sums and to monetary claims subject to the court’s discretion.10 It does not however include a money remedy ordered under ss994 996: “The court’s order may provide for the payment of a specified sum, by way of compensation or otherwise, but that is not a sum ‘recoverable by virtue of’ sections 994 996. The respondent’s obligation to pay it arises only by virtue of the court’s exercise of its very wide discretion.”11 More generally, “claims under statutory provisions which confer a wide discretion as to remedy are not claims to which section 9 applies.”12 Accordingly, no statutory limitation period applied to ss994-996 petitions. Delay in making the petition would be controlled by laches, by section 36 of the Limitation Act where the remedy sought was equitable13 and by the Court’s inherent discretion when considering a s994 petition to consider unjustified delay which adversely affects a respondent.14
Section 130 through the Zedra lens
Section 13015 provides that a relevant liability of one body corporate is “also” the liability of a body associated with the body corporate during the relevant period, where the court considers it just and equitable to make the order. It is difficult to see how this is “an action to enforce an obligation created by a deed or statute” within the Zedra definition. “Relevant liability” is of course defined in s130(3) by reference to the Defective Premises Act 1972, s38 of the Building Act 1984, or a building safety risk. The BSA creates no new liability for a building safety risk, so that limb means liability under an existing cause of action. This looks very similar to the position under ss994 996 in Zedra: a statutory power to grant relief in a wide discretion, resting on obligations created elsewhere.
On that basis, the argument goes:
- Section 130 is not within s8, because it is not an action to enforce an obligation created by a statute. It provides a form of relief where the statutory conditions are met (like ss994-996). The nearest counterargument is Collin, but the lessor in that case was under a specific obligation to enfranchise, and s130 imposes nothing of that kind.
- Section 130 is not within s9. It does not involve a claim for a sum of money at all, but an order that an associated company is liable for damages payable by another. Assuming s9 extends to unascertained sums and to monetary claims subject to the court’s discretion, per Zedra, then, like ss994-996, the respondent’s obligation to pay it arises “only by virtue of the court’s exercise of its very wide discretion”, not by virtue of s130 itself.
- This is consistent with the existence of anticipatory BLOs, as discussed in Crest Nicholson Regeneration Ltd v Ardmore Construction Ltd16: a BLO granted before judgment against the original contractor on liability and quantum. No money is paid under such an order (save where it follows an adjudication award); in the litigation it operates like an indemnity. An application which need never result in the payment of anything is not, it is submitted, an action to enforce an obligation created by statute, still less a claim for a sum recoverable by virtue of an enactment.
- It is submitted that a conclusion that an application for a BLO falls outside both ss8 and 9 of the Limitation Act also avoids the difficulty that arises in relation to ascertaining the date of accrual of the cause of action under s130. The elements of the claim must include an original body corporate, a relevant liability, a specified body corporate, and association between them during the relevant period. That period begins with the carrying out of the works and ends with “the making of the order”, so a qualifying associated company can come into existence, completing the cause of action, on the day the order is made. It would, it is submitted, be surprising if s130 was subject to a limitation period which in certain circumstances did not begin to run until the court has granted the relief.
- It is also consistent with the fact that the BSA did expressly create various new causes of action and provided for their limitation periods (see BSA Update 2), but not for BLOs or RCOs.
BLO limitation possibilities
On this basis, it seems there are four possible answers rather than the two I suggested in Update 2:
- A BLO application falls within s8 of the Limitation Act because Lords Lloyd-Jones and Briggs (and/or Lord Burrows) are right in Zedra and s130 creates “an action to enforce an obligation created by a… statute”; in this case a 12-year limitation period runs from the accrual of the cause of action.
- A BLO application falls within s9 of the Limitation Act because s130 creates a “sum recoverable by virtue of any enactment”; in this case a 6-year limitation period runs from the accrual of the cause of action.
- An application for a BLO is time-barred at the point at which the underlying relevant liability is time-barred.
- No limitation period applies to a BLO, and the fact that the relevant liability is time-barred is a factor in the just and equitable test.
For the reasons discussed above, it appears well arguable, following Zedra, that ss8 and 9 of the Limitation Act do not bite on s130 at all (the position appearing to be clearer in relation to s9 than s8).
The third possibility, as discussed in Update 2, turns on whether the words “relevant liability” in s130(3) mean a relevant liability which is not time-barred, as opposed simply to a liability (bearing in mind that limitation bars the right not the remedy).
The fourth possibility remains my current favourite. None of the BSA authorities so far has involved a limitation point. Willmott Dixon Construction Ltd v Prater [2024] EWHC 1190 (TCC), 381 Southwark Park Road RTM Co Ltd v Click St Andrews Ltd [2024] EWHC 3179 (TCC), BDW Trading Ltd v Ardmore Construction Ltd [2025] EWHC 434 (TCC) and Crest all proceed on the footing that the relevant liability must be established separately and that the BLO is a distinct remedy contingent upon it, which is consistent with the analysis above. The same is true of the FTT decisions on Remediation Orders and Remediation Contribution Orders.
This issue remains one of the many interesting points arising under the BSA which has yet to be decided.
1 I have not repeated here my discussion of the application of the Limitation Act 1980 in principle, nor the discussion as to limitation barring the right rather than the remedy: see Update 2 Keating-Chambers-BSA Update-Issue-2-23-October-2025.pdf
2 At [10], [116], [145] and [146].
3 Apparently because a statute was made under the Royal Seal, so was regarded as the highest form of deed: see [40].
4 At [115].
5 At [111] to [114].
6 At [116].
7 At [116] to [117].
8 At [118] to [123]. This meant that Collin v Duke of Westminster [1985] QB 581, where a statutory obligation on a lessor to enfranchise was held to fall within section 8, was wrongly decided.
9 At [129].
10 At [135].
11 At [146].
12 At [155].
13 At [123].
14 At [170].
15 Assuming for these purposes that s.130 does create a cause of action: see BSA Update 2.
16 [2026] EWHC 789 (TCC)
