On 4 November 2025 members of Keating Chambers, members of the judiciary, and distinguished representatives from academia and industry came together to discuss the Building Safety Act 2022 (BSA). This full-day symposium, hosted by Keating Chambers, included a series of focused panels covering key provisions of the Act and recent case law, and explored the evolving landscape of the BSA.
Panel 1: ROs (s 123), RCOs (s 124), Associated Persons (s 121)
This panel discussion provided a comprehensive overview of recent developments and practical considerations regarding Remediation Contribution Orders (RCOs) and Remediation Orders (ROs) under the BSA, focusing on key legal tests, tribunal discretion, and emerging case law.
The panel began with outlining the significance of the Triathlon Court of Appeal decision, which clarified that while the BSA places primary responsibility for building safety defects on developers, this does not create a presumption that developers must always pay. The Court emphasised that the “just and equitable” test remains fact-sensitive and discretionary, with public funding intended only as a last resort. They also referenced a potential appeal to the Supreme Court, highlighting the evolving legal landscape.
They then delved into the application of the just and equitable test, identifying three topics for discussion: the applicant’s motivation and identity, changes in beneficial ownership, and the existence of public funding. They explained that the applicant’s motivation is generally irrelevant, changes in ownership do not shield parties from liability, and public funding should only be considered when no responsible party can pay. They also noted that means and financial capacity are relevant, and that the limits of the just and equitable test - such as for charitable organizations - are still being defined by the courts.
The session addressed the tribunal’s discretion in granting ROs, noting that while the statutory language does not include a just and equitable test for ROs, the tribunal’s discretion is guided by the statutory objective of securing building safety. They explained that orders are generally granted if they further this objective, and refusal would be rare and fact-specific, such as in cases of unwanted state interference where all parties prefer to tolerate a defect.
Discussion turned to the tribunal’s power to issue suspended orders, referencing the Chocolate Box and Empire Square decisions which confirmed that the FTT has jurisdiction to order that both RO and RCOs be suspended on terms. They outlined the rationale for such orders, including efficiency and cost considerations where the developer has agreed to remediate the building in question, and emphasised that the tribunal’s discretion is broad enough to accommodate these solutions.
The panel also explored the recovery of legal costs, highlighting that the Empire Square decision confirmed the tribunal’s jurisdiction to include legal costs within an RCO. This interpretation is based on the broad language of the BSA and is expected to encourage more applicants to pursue RCOs.
Finally, the discussion covered the types of conditions that may be attached to ROs and RCOs, such as timelines, standards for remedial works, and payment structures. The importance of expert evidence in imposing achievable timelines and ensuring that remedial works cure the relevant defects was emphasised.
Overall, the panel provided practical insights into the test for RCOs and ROs, the existence of tribunal discretion, and the impact of recent case law on the allocation of liability and costs under the BSA.
Panelists: Alexander Nissen KC, Harry Smith, Isobel Kamber, Mercy Milgo
Panel 2: BLOs and Associates (ss 130-131), Information Order (s 132)
This talk focused on the BSA, particularly the mechanisms of Building Liability Orders (BLOs) and Building Information Orders (BIOs), exploring their legal framework, practical application, and unresolved issues.
The discussion began by asking the question: what is a BLO under Section 130 of the BSA? The panel highlighted ambiguities in the Act, such as the lack of clarity on who can apply for a BLO, the timing and procedure for applications, and whether the relevant liability must be established before a BLO is granted.
Case law was reviewed to shed light on these uncertainties. Notably, the cases of Wilmot Dixon Construction v Prater, 381 Southwark Park Road v Click St Andrews and BDW v Ardmore were discussed, illustrating that the court may in principle make a BLO even when the relevant liability is not yet quantified or established. The concept of an "anticipatory BLO" - one granted in anticipation of the relevant liability being established - was discussed, although the courts have not yet made such an order.
The issue of limitation periods was addressed, with the panel noting that the BSA does not specify when the cause of action for a BLO accrues. It was suggested that the reason for this is probably that a BLO is a new remedy, contingent on an existing cause of action in the form of the relevant liability, not a new cause of action in itself. On that basis, two possible interpretations so far as limitation is concerned were discussed: that a BLO is time-barred when the underlying liability is time-barred, or that the time-barred status of the underlying claim is considered within the just and equitable test. The panel acknowledged that this area remains unsettled and is likely to generate further litigation.
The "just and equitable" test was explored in depth, with reference to both BLOs and Remediation Contribution Orders (RCOs). The panel cautioned against assuming that case law from RCOs can be directly applied to BLOs, as the facts and parties involved may differ significantly, especially in commercial contexts. Scenarios were discussed where a BLO target company might not have had a fair trial, such as when default judgments are involved or when liability is conceded by the index company. The panel advised that, to avoid procedural complications, claimants should consider bringing BLO claims concurrently with main proceedings if there is any doubt about the target company's opportunity to participate.
Further, the panel examined factors that may influence the just and equitable assessment, such as unusual dividend payments or corporate restructuring designed to avoid liability, the existence of parent company guarantees or liability caps, and the relationship between the index and target companies. The potential for "spite BLOs" - claims made tactically among commercial defendants - was also noted, highlighting the need for careful pleading and strategy.
Finally, the discussion turned to BIOs under Section 132 of the BSA. The panel explained that while the Act and its explanatory notes suggest BIOs are intended to help claimants uncover complex corporate structures, recent case law (notably BDW v Ardmore) has limited their scope. Courts have held that information orders are made against parties where it appears to the court that there is a relevant liability, not merely suspected associates, creating a tension between legislative intent and judicial interpretation.
In conclusion, the talk emphasized the evolving and unsettled nature of BLOs and BIOs under the BSA, the importance of strategic litigation planning, and the likelihood of further judicial clarification as more cases are brought before the courts.
Panelists: Lucy Garrett KC, Abdul Jinadu, Alice Sims, Harriet Di Francesco
Click here to download the slides from Panel 2
Panel 3: Work to Dwellings, Section 2A, DPA (s 134)
This session focused on the implications and interpretation of Section 2A of the Defective Premises Act 1972 (DPA), as amended by Section 134 of the BSA. It began with an overview of the new provisions, with attention being drawn to the extension of the statutory duty to refurbishment and maintenance works (where previously it applied only to the provision of new dwellings). It was pointed out that this has the benefit of permitting claimants to bypass such potential limitations as privity of contract and (for claims in tort) issues relating to the recovery of pure economic loss.
The panel then explored the meaning of “dwelling” within Section 2A, and the DPA more broadly. Multiple sources, from legislative history to the Law Commission, were considered. Nonetheless, it was concluded that the definition remains unsettled. In particular, ambiguity was noted to persist in cases such as student accommodation and care homes. It was noted that the courts are likely to refer to factors such as exclusivity, control and permanence of occupation when considering such cases.
The phrase "takes on work” in the context of Section 2A was then considered. The panel explained that Section 2A is more restrictive than Section 1 in some respects, applying only to professionals acting in the course of business, but potentially broader in others, due to the work in question not being tied to any particular outcome. To this end, the relevance of Herons Court v Heronslea, which settled the matter in relation to Section 1, was discussed, with the panel taking different views on its application to Section 2A.
Overall, the discussion underscored the fact that, despite the ambiguities within its language, Section 2A is a potentially powerful tool for claimants but one which, like its predecessor in Section 1, remains under-utilised at present.
Panelists: Samuel Townend KC, Jennie Wild, Edmund Crawley
Click here to download the slides from Panel 3
Panel 4: Limitation, Section 4B, DPA (s 135)
This talk focused on the impact of the BSA, particularly Section 135, on limitation periods for claims under the Defective Premises Act 1972 (DPA) and related legal actions. The discussion began with an overview of the changes introduced by the BSA, highlighting the extension of the limitation period for DPA claims from six to 15 years for future claims, and the introduction of a retrospective 30-year limitation period for historic claims. The panelists emphasised that this retrospective application is significant, as it allows claims for developments completed up to 30 years ago, unless certain exceptions apply, such as breaches of the defendant’s human rights or claims already settled or determined in court or arbitration.
The talk then examined the Supreme Court case of URS v BDW, which is the only occasion so far where Section 135 has been considered by the courts. The case involved complex issues around negligence, contribution claims, and the retrospective effect of the new limitation periods. The Supreme Court ultimately decided in favour of a broad interpretation, confirming that Section 135’s retrospective effect is not limited to direct DPA claims but also applies to related claims in negligence and under the Contribution Act. The Court reasoned that this interpretation aligns with the policy goal of holding those responsible for building defects accountable, and that a narrower reading would undermine the Act’s purpose.
A nuanced point discussed was the distinction between the legal change brought by Section 135 and the factual circumstances at the time of remedial actions. The Supreme Court clarified that while the law now treats the extended limitation period as always having been in force, it does not alter historical facts or the subjective state of mind of parties at the time decisions were made. This distinction is relevant when considering issues like causation and mitigation, as the reasonableness of actions must be judged based on the facts and knowledge available at the time, not the later change in law.
The panelists then worked through various hypothetical scenarios to illustrate the practical implications of these legal changes. They discussed the limited scope of the Human Rights exception, noting that the mere passage of time or loss of documents is unlikely to suffice unless it can be shown that the absence of evidence would materially affect the outcome. They also explored how the duty to mitigate losses interacts with the retrospective change in limitation periods, suggesting that parties who failed to act because they believed claims were time-barred may still see their damages reduced if it was otherwise reasonable to remediate defects.
Finally, the talk advised claimants to preserve both contractual and DPA claims where possible, as each may offer distinct advantages in terms of limitation periods, scope of liability, and available remedies. The panelists concluded that while the BSA provides powerful new tools for claimants, careful legal analysis is required to navigate the interplay between old and new rules, especially in complex or historic cases.
Panelists: Jonathan Selby KC, Paul Bury, Connie Trendle
Click here to view the recording of Panel 4's discussion
Panel 5: Liability for Construction Products (ss 147-150)
This session focused on the legal implications and challenges surrounding construction products, particularly cladding, in the context of the BSA and related legislation following the Grenfell Tower fire. The discussion began with an overview of the scathing findings in the Grenfell phase two report, highlighting systematic dishonesty among manufacturers of rainscreen cladding panels and insulation products. The panel explored how the BSA introduces new rights of action for building owners and leaseholders against manufacturers and suppliers, allowing claims for damages related to personal injury, property damage, or economic loss when a dwelling is unfit for habitation.
The panel addressed the role of contribution claims under the 1978 Act, which can extend the utility of Section 149 of the BSA beyond building owners to contractors, architects, and other construction professionals. Through practical examples, the panelists illustrated scenarios where architects or contractors might seek contributions from cladding manufacturers, depending on the chain of liability and the applicability of the Defective Premises Act 1972 (DPA). The complexities of these claims were discussed, including the limitations when the claimant is not the building owner and the potential gaps in the current legal framework, which the government is actively reviewing.
The panel then delved into the technical requirements of Section 149, breaking down its conditions, including: the need for an inherently defective cladding product, its attachment to or inclusion in the external wall, the resulting unfitness for habitation, and the causative link between the product and the defect. The definition of a cladding product, the identification of manufacturers, and the meaning of "inherently defective" were debated, with practical challenges noted in identifying responsible parties and interpreting ambiguous terms like "external wall."
Further discussion covered the concept of cladding product requirements, referencing various regulations (1991, 2011, and 2019) and the difficulties in tracing these requirements back to the building regulations, especially for claims predating the Brexit transition. The lack of clarity in the legislation was highlighted, with calls for further government clarification and potential regulatory amendments.
The final segment examined liability for misleading statements made by those marketing or supplying cladding products. The panel raised questions about the breadth of the remedy, the definition of marketing and supplying, the scope of misleading statements, the potential for strict liability, and the necessity of proving causation and reliance. The absence of statutory definitions and the reliance on analogies from other areas of law, such as misrepresentation and consumer protection, were noted as ongoing challenges.
Throughout, the panelists emphasised the evolving nature of the legal landscape, the need for judicial clarification, and the government's ongoing consultation to address gaps and challenges in holding manufacturers and suppliers accountable for unsafe construction products.
Panelists: Simon Hughes KC, Alexandra Bodnar, Charlie Thompson, Tom Coulson, James Frampton
Click here to download the slides from Panel 5
Click here to view the recording of Panel 5's discussion
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