Practical Law

Commentators have begun assessing the impact of the Building Safety Act 2022 (BSA 2022) – not least on this blog – and there is much more yet to be said. This post concentrates on construction products, in particular, new rights to pursue manufacturers and suppliers in civil actions.

Regulations controlling some construction products already exist, and a very helpful summary of these can be found here. BSA 2022 will usher in a new regime in which all construction products will be subject to at least some regulatory oversight. The proposed Construction Products Regulations 2022 are available in draft.

What are the new rights created by the BSA 2022?

There are two areas: liability for products and cost contribution orders.

Liability relating to construction products and cladding products

Under BSA 2022 (sections 147 to 151), a person with an interest in a “relevant building” will have a new right to claim damages against manufacturers and suppliers of products used in its construction. Such buildings are those that contain or consist of dwellings, demonstrating the strong residential focus of the rights created in this part of the Act. Such people will be able to claim damages in respect of personal injury, damage to property and economic loss.

The BSA 2022 pertains to both “construction products” generally and, separately, “cladding products”. The latter is defined widely, including the component parts of a façade as well as the whole system. Presumably this is to ensure that all products in a complex, multi-layered façade system can be considered “cladding”, even if a manufacturer of (say) insulation would not call it so. The definition appears to further acknowledge that issues may arise with individual products or their combination in a façade system.

Liability for both cladding and construction products arises when certain conditions are met (sections 148 and 149):

• Condition A pertains to the failure giving rise to liability. Such failures include not complying with the regulations for construction products (both those that now exist and those that are to come); making a misleading statement in relation to a product in its marketing or supply; and manufacturing a product that is inherently defective.
• Condition B is the requirement that the construction product is installed, or applied or attached to a relevant building in the course of works or construction.
• Condition C requires that, when the works are completed, the building or dwelling is unfit for habitation.
• Condition D requires that the facts established in Condition A were the cause, or one of the causes, for the building or dwelling being unfit for habitation.

If the conditions giving rise to liability for construction products and cladding products are similar, why are they treated separately in BSA 2022? In short: limitation periods.

• For cladding products, if the right of action accrued before the commencement of the Act, time runs for 30 years from the date of accrual.
• For actions accruing after commencement of the Act, the limit is 15 years for both construction and cladding products.

Where I see potential for difficulty is the requirement to show causation under Condition D.

As well as all the usual points to be made about proving causation, defendants to these claims might marshal arguments around the complexities of decision-making as to product specification. Or they may point to the product being modified as it travels through the supply chain, which might include fabrication, assembly, or combination with other components. They may say their product is not inherently defective, and is perfectly acceptable for use if the other conditions in a particular construction are just so. In this way, they may deflect any causative effect of their product.

Cost contribution orders

BSA 2022 delivers a second, new recourse to damages in the form of cost contribution orders, to be issued by either a court or the Secretary of State. These will be paid by those who fail to comply with any of the regulations on construction products, called “defaulters” (sections 152 to 155).

Cost contribution orders will be paid to those with an interest in the building or dwelling. As to quantum, this will be a just and equitable amount in respect of the costs of making the building or dwelling fit for habitation.

Again, for these orders, several conditions must be met, set out as Conditions A to D.  Conditions B to D largely follow the structure for the liability for construction and cladding products discussed above: the product must be installed, applied or attached to the building or dwelling (Condition B); that the building or dwelling was unfit for habitation when works were completed (Condition C); and that the failure to comply is the (or a) cause of the building or dwelling being unfit (Condition D).

But Condition A is striking. It requires that the defaulter is convicted of an offence under the regulations governing construction products. As every reader of this blog knows, conviction of a criminal offence requires establishing culpability to the criminal standard: beyond a reasonable doubt. So, the threshold condition to establishing a civil liability for a costs contribution order is effectively the criminal standard of proof.

Moreover, the BSA 2022 extends liability for others involved in the construction of buildings that are unfit for habitation, in particular, rights of recourse against developers under the Defective Premises Act 1972. The burden of proof against them will be to the civil standard – on the balance of probabilities. Establishing the threshold requirement that (say) a manufacturer is culpable and should pay a costs contribution order will be somewhat harder than for a developer. That is even before we mention requiring a different court process, on a different timeline and in the power of a separate enforcing authority.

Here we have the grafting of regulatory law – inherently a function of public law, usually with public law remedies – into a regime that creates private, civil law remedies. You may wonder if manufacturers and suppliers of construction products that make buildings unfit for habitation will be less likely to be held liable in practice, despite the best intentions of the drafters.