Redefining negligence, duty of care and building safety obligations

Speedread

One year on from the landmark UK Supreme Court judgment in May 2025 in  URS Corporation Ltd v BDW Trading Ltd, the case has emerged as a defining authority on both building safety obligations and the scope of recoverable loss in negligence. It provides a significantly wider route for developers to recover voluntarily incurred remediation costs, fundamentally reshaping risk allocation across the construction supply chain.

Central to the decision is the Court’s confirmation that developers who proactively remediate dangerous defects may recover their costs from sub-contractors in negligence, even where they no longer own the property and were not under an immediate legal obligation to act.

The judgment also provides authoritative guidance on the retrospective effect of the English Building Safety Act 2022 (the BSA), confirming that developers may both owe and be owed duties under the Defective Premises Act 1972 (the DPA), and broadening when contribution claims may be pursued. The decision has far‑reaching implications for developers, contractors, consultants and their insurers. This decision also brings into sharp focus Ireland’s continued reliance on limitation periods and a remediation-focused policy approach. 

Case background

BDW Trading Ltd (BDW), a major UK residential developer operating through brands including Barratt Homes and David Wilson Homes, developed two high‑rise residential buildings and appointed URS Corporation Ltd (URS) to provide structural and engineering design services.

Following the Grenfell Tower tragedy in 2017, the UK Government encouraged developers to investigate medium and high‑rise developments and to remediate any serious safety defects identified. As part of that process, BDW’s investigations in 2019 revealed serious significant design defects in both developments, requiring extensive remedial works to address life‑safety risks.

By the time the defects were identified, BDW no longer retained any proprietary interest in the developments, as long leases had been granted to residents and the freeholds transferred to management companies.  Despite this, BDW carried out extensive remedial works, even though any claim by homeowners would have been statute barred under English law.

BDW subsequently sought to recover its losses from URS, issuing proceedings in negligence in 2020 alleging a failure to exercise reasonable skill and care in the provision of its design services.  No contractual claim was pursued.

At the trial of preliminary issues, the High Court held: (i) BDW’s losses were recoverable because they fell within the scope of URS’s duty of care in tort; and (ii) BDW’s cause of action in tort had accrued no later than the date of practical completion, not when the defects were discovered.  Therefore, the Court held that BDW had suffered a recoverable loss because it held a proprietary interest when the cause of action accrued. 

Legal issues considered by the Supreme Court 

The Court of Appeal found in BDW’s favour following an appeal by URS. The Supreme Court (the Court) then granted URS permission to appeal on four discrete issues of wider legal importance:   

1. Whether losses incurred “voluntarily” are irrecoverable in negligence.
2. The extent to which section 135 of the BSA operates retrospectively.
3. Whether developers are owed duties under section 1 of the  DPA.
4. When a claim for contribution may be brought under the Civil Liability (Contribution) Act 1978 (the Contribution Act).

Decision

1. Voluntary loss and negligence

The Court considered whether, in negligence, voluntary losses are irrecoverable as a matter of law.  

URS argued that BDW’s losses were irrecoverable because BDW had no enforceable legal obligation to carry out remedial works and no proprietary interest in the buildings at the relevant time. The Court rejected the existence of any rule that “voluntary” losses are irrecoverable as a matter of law,

The Court stressed that voluntariness is not an independent bar to recovery but, “is most obviously and normally relevant to issues of causation and mitigation”. This reframes ‘voluntariness’ as part of orthodox negligence analysis, relevant to causation and mitigation, rather than a standalone limiting principle. 

The correct enquiry, the Court held, is fact‑specific and turns on whether the claimant’s actions were reasonable in the circumstances. Relevant considerations include:

1. the risk of the claimant becoming legally liable under the DPA to homeowners for personal injury or death;
2. the risk of the claimant becoming legally liable to homeowners for the repairs, regardless of the claims being time-barred at the time it undertook the repairs, as limitation acts to bar the remedy, but it does not extinguish the underlying right;
3. the claimant’s commercial interest in avoiding reputational damage; and
4. the general public interest and moral pressure.

Based on these factors, the Court concluded that BDW was "not exercising a sufficiently full and free choice so as to be regarded as acting voluntarily in effecting the repairs. In other words, BDW had no realistic alternative.” 

The Court also noted that, as a matter of policy, the law favours “incentivising a claimant in BDW’s position to carry out the repairs so as to ensure that any danger to homeowners is removed”.

The judgment reflects a clear policy objective: the law should encourage responsible parties to address risks to life and safety, rather than penalising those who take early action. While claimants cannot deliberately inflate losses expecting later recovery, the Court acknowledged that decisions taken in complex regulatory, commercial and moral contexts cannot be assessed in isolation.

Notably, the Court found that “reputational damage” can be a valid factor in assessing whether a developer’s actions are truly voluntary, reflecting the commercial reality of the construction industry where even minor failings can result in lasting reputational and commercial consequences. 

2. Retrospective extension of limitation under the Building Safety Act

Section 135 of the BSA retrospectively extends the limitation period for claims brought under section 1 of the DPA  from 6 years to 30 years. When BDW undertook the repair works in 2019, any claims against it were statute-barred; under section 135, such claims would no longer be time-barred.

The issue was whether this extended limitation period applies only to DPA claims or whether it also extends to related  negligence and contribution arising from the same underlying defects. 

The Court firmly rejected the narrow interpretation that section 135 is confined to direct DPA claims only. It held that such an approach would produce incoherent and contradictory results:- allowing homeowners  claim against a contractor or developer while preventing those held liable from seeking recovery from others responsible for the same defects. The Court confirmed that the extended limitation period also applies to negligence and contribution claims arising from the same underlying defect,  ensuring that those responsible further down the chain remain exposed to claims in respect of historic defects.

A narrower interpretation, the Court concluded, would undermine “the central purpose and policy” of the legislation to increase accountability by preventing parties responsible for defects from seeking appropriate recoveries further down the supply chain.

3. Duties owed under the Defective Premises Act

The Court also clarified that developers may be owed duties under section 1 of the DPA. 

While it was uncontroversial that BDW owed statutory duties to homeowners, URS argued that BDW could not itself be a beneficiary of the Act. The Court again rejected that narrow reading. Relying on the fact that the relevant work was carried out “to the order” of the developer, the Court held that URS owed BDW a duty under section 1(1) of the DPA.  This confirms that the DPA can operate not only as a source of liability owed by developers, but also as a route by which developers may pursue recovery against those responsible for defective design or construction.

This interpretation aligns with the wider policy reflected throughout the judgment of promoting safe construction and ensuring accountability across the construction industry to those ultimately responsible.

4. Contribution claims

The Court also clarified that a contribution claim under section 1 of the Contribution Act may be brought even where no third-party claim has been asserted and no judgment or settlement reached. 

BDW sought contribution from URS under the Contribution Act on the basis that each was liable to the homeowners for the “same damage”.  The Contribution Act provides a mechanism whereby parties who are jointly or severally responsible for the same loss may seek a fair apportionment of liability between themselves.  on the basis of their respective responsibility for the damage.

URS argued that BDW’s contribution claim was premature absent any antecedent claim by homeowners or any judgment or settlement fixing BDW’s liability.  The Court rejected this argument, holding that a right to contribution arises when two or more parties are liable for the same damage, and one party has paid or incurred more than its proper share. It is not necessary to await proceedings to be issued before seeking contribution. 

Key takeaways

This case brings welcome clarification to the construction sector navigating the post-Grenfell Tower tragedy fallout. 

• Voluntarily incurred loss is not automatically irrecoverable - There is no prohibition on the recovery of “voluntary” losses. The decision confirms that remediation costs are not irrecoverable simply because they were incurred without an immediate legal obligation to act or in respect of property in which the claimant has no proprietary interest. Instead, the question is whether the loss was reasonably incurred and falls within the scope of the defendant’s duty. 
• Wider scope for contribution claims: Parties in the UK can seek contributions from other liable parties without having to wait for a formal claim or judgment. This clarification is of significant practical importance. It removes a procedural obstacle to early remediation and allows parties to address safety defects without forfeiting their ability to seek an appropriate apportionment of responsibility further down the chain at a later date.   
• Support for early remediation: This judgment supports developers who take responsible steps to remediate dangerous defects before formal claims materialise, while preserving routes to recovery against those further down the supply chain. 
• Increased risk exposure for contractors, developers and insurers: The decision increases the prospect of legacy claims particularly in relation to legacy design work and safety-critical defects.     Where defects arise from workmanship issues, professional indemnity cover may not respond. 
• Fair allocation of remediation risk: The judgment places an expectation on the industry (including the insurance industry) to support a more effective pass-through of remediation risk to those responsible for defective design or construction. 
• Potential evidential challenges: The retrospective extension of limitation is also likely to create evidential challenges, particularly where projects are decades old and records will be incomplete or no longer available. 
• Safety objectives front and centre: A consistent theme throughout the judgment is the strong emphasis on the underlying objectives of  building safety legislation changes which aim to encourage parties to take proactive steps to remedy safety defects in buildings and to ensure that the remediation costs for safety defects fall on those responsible. 

Ireland – what next?

What does this decision mean for the Irish construction sector? 

In Ireland, the leading authority on limitation in latent construction defect claims remains Brandley v Deane [2017] IESC 83. The Supreme Court held that time begins to run in a negligence action when the damage – not the defect – becomes manifest.  Mr Justice McKechnie clarified that “manifest” means ‘the damage must have been capable of being discovered by a plaintiff’’.

This now contrasts with the UK position. Section 135 of the BSA retrospectively extends the limitation period for accrued DPA claims from 6 years to 30 years, whereas Irish law continues to depend on ordinary accrual principles and the existing statutory limitation framework. As Ireland has no equivalent to the BSA’s retrospective re-opening of historic liability, the more realistic question is not whether URS v BDW will be directly applied, but whether similar legislative reform will emerge. 

The existing Irish framework remains centred on the Building Control Acts and Regulations, under which compliance obligations rest with owners, builders and designers, while inspection and enforcement powers are exercised by local authorities. In parallel, policy attention has shifted towards remediation. 

As of May 2026, the Apartment and Duplex Defects Remediation Bill 2024 has completed pre-legislative scrutiny but has not yet been enacted.  The proposed scheme is intended to fund 100% of eligible remediation costs for relevant fire safety, structural safety and water ingress defects in purpose-built apartments and duplexes constructed between 1991 and 2013. Pending enactment of the full statutory scheme, the Interim Remediation Scheme for emergency fire safety defects remains in place. 

The current Irish policy direction appears more regulatory and remedial than the UK’s retrospective private-law reallocation of liability. While URS v BDW will be of persuasive interest, any comparable expansion of historic civil liability would require legislative intervention, rather than judicial development alone. Whether similar legislative changes will follow in this jurisdiction remains an open question.

For further information, please contact Hannah Shaw , Caroline Murphy or Aisling Vaughan, or your usual contact on the ALG Disputes or Construction & Engineering teams.

Date published: 16 June 2026