Contribution under the Civil Liability (Contribution) Act 1978 (“CL(C)A”) may have a significant part to play as actors seek to position themselves on the BSA stage and, in particular, as those first out of pocket seek to pass on their losses to others.
In this article, I will address the technical element of the question, before asking in what circumstances this remedy, as opposed to others, might be required.
Let me first set the contribution scene by reference to the Supreme Court’s recent judgment in BDW Trading Ltd v URS Corporation Ltd [2025] 2 WLR 1095 [SC]. Assume a triangle with A at the apex and B and C at left and right: A is the party to whom each of B and C is liable in respect of the same damage, and B claims contribution from C.1 A claim for contribution – albeit a claim in respect of a “liability” [s1(1) CL(C)A] – can, it turns out, only be made by B in respect of an identifiable amount of money to which C can be ordered to make contribution [224-231]. A claim for contribution is a claim for an order for money [224, 227]. B can recover contribution when (s)he (1) has made a payment, or (2) has agreed to make a payment or (3) has been ordered to make a payment [225]. A payment includes carrying out works (a payment in kind) [226]. The amount of contribution is that which is just and equitable having regard to the extent of that person’s responsibility for the damage in question [s 2(1) CL(C)A]. The cause of action in contribution both accrues, and time commences under the Limitation Act 1980 (“LA 80”), as follows. Where there is a judgment or an arbitral award, time runs from the date of the order establishing quantum [s 10(3) LA 80]. Where there is a payment, the date is the date the payment is made [232], even if there is a later agreement about the payment (“if earlier” [232]). Where there is an agreement to make payment (in the future), the date is the date of the agreement [232]. Proceedings for contribution may be commenced before the right to contribution has accrued by operation of rules of court in legal proceedings in which A sues B [238].
Let me now turn to s124 BSA. Under s124, the FTT may make a RCO which is an order, in relation to a relevant building, requiring a specified body corporate [B] to make payments to a specified person [A] for the purpose of meeting costs incurred or to be incurred in remedying relevant defects relating to the relevant building. As against this statutory scene, contribution would appear to be available as a remedy as follows. There are four types of person against whom an RCO may be made [s124(3)]. A person of one type against whom an RCO has been made may claim contribution against any of the other types of person. The cause of action will accrue when the RCO is made, and the limitation period is two years from that date. The FTT does not have jurisdiction to determine the claim for contribution, which would have to be determined in the High Court. It will not be possible to claim contribution until an RCO has been made, because until then there will be no identifiable amount of money that C can be ordered to make contribution in respect of, and since the RCO claim is in the FTT, not the High Court, the rules of court permitting an ‘anticipatory’ claim for contribution do not assist. It is a more difficult question whether a claim for contribution would be available where A’s claim against B was settled. After all, the RCO is a discretionary remedy, and who is to say in those circumstances whether B is or ever was “liable” to A for the purposes of s1(1) of the CL(C)A? C would undoubtedly argue that the mere fact that an RCO “may” have been made against B does not mean that B was “liable” for the purposes of the CL(C)A. Nor it would seem does ss1(4) resolve this difficulty because, although that subsection confers in the case where B has settled with A the assumption that the factual basis of the claim by A against B is established, B nonetheless has to establish that B would have been liable to A on that assumption. I propose to leave this question for another day.
Where B is liable to A for an RCO, may B claim contribution from C in circumstances where C is not liable to A for an RCO, but is liable to A under the Defective Premises Act 1972 (“DPA”) – which would appear to be the position where A has a legal or equitable interest in the relevant building or any part of it [s124(5)(e)] but not otherwise [ss124(5)(a) – (d)]? There is of course no difficulty under the DPA with the nature of the two liabilities being different. Instead, the question is whether the damage is the “same damage”. The concept of “same damage” is difficult territory, the House of Lords in Royal Brompton Hospital NHS Trust v Hammond (No.3) [2002] 1 WLR 1397 [HL] having, respectfully, overlooked an opportunity to equate “damage” in the 1978 Act with the most legally mature treatment of “damage” in the common law, namely the concept of “damage” in tort, specifically in the context of accrual of a cause of action in negligence. Instead, the House of Lords trod the difficult path, respectfully, of trying to conceptualise same damage on the one hand, whilst at the same time refusing to be drawn into glosses or other means of definition or clarification on the other, leaving the meaning of “damage” and “same damage” rudimentary, Protean and unpredictable.
Leaving that debate, too, for another day, when considering “same damage” it is necessary to examine with care the two types of damage under consideration. Under the DPA, the “damage” in respect of which the statute provides a remedy to A is simply the defectively uninhabitable dwelling2 in which A has a legal or equitable interest [ss1(1)(b)] or to whose order said dwelling was provided [ss1(1)(a)]. Under the more convoluted BSA, the “damage” is a mouthful along these lines: the state of a building containing dwellings, being defective, and giving rise to a building safety risk (as defined), in respect of which expenditure on remedial works (or relevant steps (as defined)) is required. On this basis, and provided the relevant dwellings are uninhabitable on the DPA test, it strikes this writer at least as entirely arguable that the damage or some part of it is the “same damage” for the purposes of the CL(C)A. After all, in each case, the dwellings/building-containing-dwellings are/is seriously defective so as to warrant expenditure on remedial works. Even bearing in mind some of the distinctions drawn in Royal Brompton between one supposed kind of damage and another when the House ran through some earlier authorities said to have been decided incorrectly, it seems, to this writer at least, unlikely that those sorts of fine distinctions would be drawn here, and there is the further point that it would be consistent with the policy of both the DPA and the BSA that the concept of same damage be given a not ungenerous interpretation, notwithstanding what was said about no glosses, and narrow vs. wide vs. neither, in Royal Brompton 23 years ago. The scope of the remediation order (“RO”) and RCO remedies is broader than that under the DPA but, to the extent that the remedial works and accompanying cost under each intersect, that presents no difficulty, and the amount of the overlap would comprise the identifiable amount of money to which C can be ordered to make contribution.3
But in what circumstances might the remedy of contribution, as opposed to other remedies, actually be required? Let us start by considering the applicant and respondent in a claim for an RCO. The applicant for an RCO is one or more of the five “interested persons” listed in s124(5)(a) – (e). Of those, only “(d) a person with a legal and equitable interest in the relevant building or any part of it” is likely to be of interest to our enquiry, because only that kind of “interested person” will be owed a duty under the DPA so as to enable a claim in contribution to get off the ground. The respondent to an RCO is one or more of the four specified persons listed in s124(3)(a) – (d). Of those, the developer (at (c)), is unlikely to need the remedy in contribution because the developer will have his own direct claim against his supply chain under the DPA. This, after all, was the key DPA point decided in BDW [at 159]. The same is true for the landlords at (a) and (b) who have, or had, a legal interest in the dwellings. However, the situation is different for the person “associated” (at (d)) with the developer. That person does not have a DPA claim against the developer’s supply chain (unless he has a legal or equitable interest in the building / dwelling) because the dwelling was provided not to his order, but to the developer’s order. Accordingly, a person “associated” with the developer may well have need of the claim in contribution.
Simon Hargreaves KC appeared in the Supreme Court for the Respondent in URS v BDW.
The full article was written by Simon Hargreaves KC and is part of the first issue of the Keating Chambers BSA Update.
1 And vice versa, but for the purposes of this paper B will be the “contribution claimant” and C will be the “contribution defendant”.
2 On the present law. There is the possibility that Alexander v Mercouris [1979] 1 WLR 1270 [CA] will be overruled, with the result that the dwelling need not be uninhabitable, merely defective. See Ramsey J’s persuasive consideration of this decision in Harrison v Shepherd Homes Limited (2011) 27 Const LJ 709 (TCC) at [144-153]. Whereas it was once thought very likely that Mercouris would be overruled, it is conceivable that that may have changed in the light of BDW.
3 Nationwide Building Society v Dunlop Haywards [2009] PNLR 20 (Comm). B liable in deceit, C liable in negligence. B could recover in contribution the intersection, but not the wider scope (because deceit) of his liability to A.
