On 14 October 2026, members of Keating Chambers and esteemed guest speakers delivered a comprehensive BSA Symposium in London.
Through a series of panel discussions speakers shared practical insights drawn from their extensive experience across a breadth of BSA disputes and the rapidly developing law in this area.
A summary of each session and the available slides can be found below:
Morning Keynote: Mr. Justice Constable, Judge in Charge of the TCC
Judge in Charge of the TCC, Mr Justice Constable, opened the Keating Chambers BSA Symposium by observing that, four years after the Building Safety Act 2022 received Royal Assent, attention is increasingly turning from questions of statutory interpretation to the practical management of proceedings and the operation of the Act’s remedies. He considered in particular the division of jurisdiction between the First-tier Tribunal, which deals with Remediation Orders and Remediation Contribution Orders, and the High Court, including the TCC, which has jurisdiction in relation to Building Liability Orders. Proceedings in the two jurisdictions may raise overlapping factual issues, making effective procedural co-ordination important in appropriate cases.
The talk addressed the work of the TCC BSA Working Group and the provisions introduced in Edition 4.1 of the TCC Guide, including Appendix L, which are intended to identify related BSA proceedings at an early stage and facilitate appropriate judicial co-ordination. Mr Justice Constable also considered the developing case law concerning Building Liability Orders and the “just and equitable” requirement, including Triathlon, Crest Nicholson v Ardmore and other recent decisions. The discussion considered, among other matters, the circumstances in which a BLO may be sought, its relationship with underlying liability, the relevance of adjudication decisions, and the interaction between BSA proceedings and other forms of building-safety litigation. The talk concluded by considering recent authority concerning construction products, jurisdiction and the extended limitation periods introduced by the BSA.
Panel 1: Remediation Contribution Orders (RCOs)
Chaired by Clarissa Hillier (Addleshaw Goddard), Panel 1 examined joint TCC/FTT case management, recoverable litigation costs, and remedial scheme thresholds under Section 124 RCOs. Alice Sims considered new section 9 of the TCC Guide which allows joint case management for TCC and FTT proceedings. Durkan v Wallace, in which she appeared as counsel for Durkan, was the first case of its kind. Appendix L questionnaires now trigger an allocation CMC within 28 days to assign a single TCC judge sitting in dual TCC and FTT capacities. In Durkan v Wallce the Court/FTT applied a unified CPR evidence regime and created three distinct cost codes (FTT-only, TCC-only, and Joint). While joint management provides factual consistency and binding findings, it extends timetables and increases procedural cost exposure for applicants so there are differing advantages and disadvantages depending upon the client’s position, which will need careful consideration by the lawyers running the proceedings.
Jennie Wild evaluated recoverable costs under Section 124, contrasting Vista Tower (tribunal skepticism regarding litigation costs) with Empire Square (litigation costs recoverable if incurred in taking "relevant steps" to remediate) and Howarth (costs rejected when claimed post-works at PTR). Regarding pre-BSA costs, the Court of Appeal in Triathlon confirmed that Section 124 covers pre-enactment expenses (such as waking watches and alarms) incurred prior to 28 June 2022. Alexandra Bodnar addressed risk thresholds under Section 124, noting that the Upper Tribunal (UT) in Vista Tower confirmed "any risk" encompasses low or minimal risk. Even where experts agree a remedial scheme is technically disproportionate (such as full render replacement versus sealing), applicants can establish reasonableness under the "just and equitable" test by demonstrating reliance on contemporaneous non-negligent fire engineer advice, time pressures, local authority notices, and stakeholder demands. The tribunal also affirmed its statutory power to issue joint and several RCOs across multiple respondents.
Panel 2: Building Liability Orders (BLOs)
Chaired by Alexander Nissen KC, Panel 2 explored BLOs, anticipatory orders, interaction with adjudication, and extraterritorial reach. James Frampton reviewed Crest Nicholson v Ardmore, where Constable J held that BLOs serve a broad policy objective extending across corporate groups rather than being confined to SPVs or thinly capitalised entities. Adjustments for claimant fault or knowledge can be managed under a "specified description" allocation at trial. Connie Trendle examined anticipatory BLOs, raising questions as to their certainty in light of the potential for a reduction of the transferred liability at trial, and debating whether the role for adjudication evidence in anticipatory BLO applications is undesirable.
Alexander Nissen KC explored the interaction between BLOs and adjudication (BDW v Ardmore and Crest v Ardmore), confirming that adjudicators have jurisdiction over DPA claims by applying the Fiona Trust doctrine to the phrase "under the contract". An adjudicator's decision creates an interim binding liability capable of grounding a BLO. While stale claims (15–30 years old) face evidential hurdles, missing legacy records due to poor record-keeping do not automatically constitute a breach of natural justice. Abdul Jinadu detailed Section 131 corporate association, which operates via a mechanical Stage 1 gateway (holding 50% or more of shareholding, voting rights, or control) followed by a Stage 2 "just and equitable" evaluation. In HB (WM) v Sto, Moody J confirmed that Section 131 applies to foreign parent entities, holding that extraterritorial reach was intended by Parliament where English law governs the underlying tort.
Panel 3: Other BSA Remedies
Chaired by Lucy Garrett KC, Panel 3 analysed the expanded Defective Premises Act 1972 (DPA), statutory limitation periods, Regulation 3 landlord notices, and main contractor risk management. Paul Bury outlined changes to the DPA, including Section 2A extending DPA duties to refurbishment works prospectively from 28 June 2022, alongside changes to the limitation period, including a 30-year retrospective limitation period. The Supreme Court case of BDW v URS considered whether onward contribution claims benefit from this extended timeframe, as well as deciding that Developers can act as both duty holders and those to whom the duty is owed. Also considered were the Court of Appeal case of Wilson v HB, confirming that the measure of damages under the DPA aligns with contractual principles, the importance of expert safety evidence for a finding of unfitness for habitation in Mallas v Persimmon, and the significance of the DPA in adjudication in Crest v Ardmore.
Lucy Garrett KC updated last year’s talk on the limitation periods which might be applicable to BLOs and RCOs, in which she concluded that no statutory limitation period was applicable and that any time bar of the underlying liability in the case of BLOs fell to be taken into account as part of the just and equitable test in the light of THG v Zedra, considering a potentially similar statutory discretionary remedy which was held by the Supreme Court to fall outside the Limitation Act 1980. During the talk, the government announced the Building Safety (Remediation of Unsafe Cladding) Bill, which provides that no limitation period is applicable to BLOs or RCOs. Harry Smith considered reg.3 of the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022, which makes a “responsible landlord” liable to pay remediation costs to the current landlord in certain circumstances. In Stratford Village v East Village, which is the first and (as yet) only decision on reg.3, the First-Tier Tribunal held, amongst other things, that it was the proper forum for challenges to the validity of reg.3 notices, and that the availability of BSF funding did not prevent liability from arising. From an industry perspective, Marie-Claire O'Hara of Laing O'Rourke highlighted that main contractors face practical hurdles managing 30-year longtail liabilities, missing legacy documentation, fast-track adjudications feeding into group BLOs, and managing corporate risk across historic supply chains. She raised concerns as to the direction of travel: the BSA has generally be interpreted widely, and is having a radical effect on carefully negotiated contractual risk allocation.
Special Panel: Mediating BSA Disputes
Rosemary Jackson KC and Fionnuala McCredie KC discussed how the expanded BSA statutory remedies and 30-year retrospective limitation period are well-suited to mediation. BSA mediations can include Section 148 and 149 product claims, BLO parent company liabilities, and RCO contribution orders alongside traditional contractual and DPA claims. Multi-party BSA mediations can involve up to eight or more distinct entities, including freeholders, developers, main contractors, sub-contractors, professionals and product manufacturers, some of whom will have insurance cover, some will not. One of the characteristics of these disputes is that there may be a mismatch between financial resources and legal fault, where the party with the deepest pockets may bear the least responsibility.
Mediators must actively manage possible causes of friction between sophisticated repeat commercial actors and inexperienced single-practitioner consultants or subcontractors, conflicting negotiation strategies, unease over setting precedents, and widespread initial pessimism regarding same-day settlement. Under Churchill v Merthyr Tydfil, courts increasingly compel reluctant parties to engage in ADR, backed by adverse cost threats for unreasonable refusal. To maximise mediation outcomes, parties should engage mediators early to resolve technical information gaps, clarify authority and public funding and Building Safety Fund reimbursement conditions, understand underlying insurance coverage disputes, and explore creative non-binary settlement structures such as direct remediation contracts, staged works, or alternative security arrangements.
Grand Panel
The Grand Panel, comprising Rosemary Jackson KC, Simon Hargreaves KC, Jonathan Selby KC, Lucy Garrett KC, James Frampton and Connie Trendle, addressed questions submitted by the audience throughout the day, and included a breaking statutory update, as well as consideration of cross-border enforcement of BLOs, cladding product claims, and the tactical considerations that ought to be made when deciding whether to pursue proceedings in the TCC or FTT.
A key development highlighted was clause 89 of the newly published government Building Safety (Remediation of Unsafe Cladding) Bill (announced during the event), which contains a declaratory provision establishing that the Limitation Act 1980 does not apply to BLOs, RCOs, or ROs.
When deciding whether to pursue proceedings in the TCC or FTT, claimants should note that while RCOs can reach developer associates through common directorships, different rules apply to the association test for BLOs. Further, the TCC has jurisdiction over a broader range of defects than the FTT (such as damp or water ingress). Indeed, water ingress resulting in mould or decay can satisfy the DPA unfitness for habitation threshold, supporting both DPA and BLO claims.
Regarding cladding product claims under Section 149 of the BSA, the requirement that a product be inherently defective gives rise to various undecided issues, including in relation to arguments about whether individual components in entire installed cladding systems are inherently defective.
In relation to building safety risks arising from structural failure (for the purposes of BLOs under section 130), the panel noted that structural failure might encompass the erosion of design safety factors and risks arising from live or snow loading. But the panel queried whether such risks include non-structural risks in the building fabric, such as falling roof tiles. The requirement for a risk of structural failure for BLOs contrasts with RCOs, which require the risk to arise from the "collapse" of the building or any part of it.
The panel also discussed the fact that the duty under section 1 of the DPA does not extend to approved building inspectors under Herons Court, but the new provision in Section 2A of the DPA may invite further argument in this connection in relation to refurbishment works.
