Andrew Butler KC delves into the extension of time limits for building safety claims under Section 135 of the Building Safety Act 2022, covering issues like defective premises and building regulations. He highlights the retrospective nature of the law, enabling previously barred claims. Legal ramifications, including potential human rights challenges regarding fair trials, are explored. Andrew’s piece also addresses how defendants might raise concerns about revived claims and examines wider impacts on legal proceedings and property rights.

1. One of the most eye-catching and publicised provisions in the Building Safety Act 2022 (“BSA 2022”) is s.135, which introduces new time limits for various kinds of claim concerned with building safety. 

2. It does this by inserting a new s.4B into the Limitation Act 1980 (“LA 1980”). The full text of s.135 (with the new s.4B appearing in ss.135(1)) is set out at the end of this paper. 

3. The new s.4B is concerned with actions under ss.1 or 2A of the Defective Premises Act 1972 (“DPA 1972”), and s.38 Building Act 1984. These are, respectively (and in simplified terms), actions against people who build homes (or get others to build them), actions against those who undertake work on homes (or get others to undertake it), and actions for breach of building regulations in respect of buildings containing homes. 

4. The effect of s.4B is to replace the 6-year limitation period provided for by s.2 LA 1980 in respect of such actions with a 15-year limitation period. 

5. In respect of actions under s.1 DPA 1972, the new s.4B goes even further. It provides that if a person became entitled, before the coming into force of the BSA 2022, to bring an action under s.1 against any other person, the limitation period is to be 30 years. The BSA 2022 came into force on 22 June 2022. 

6. s.135 also provides by s.135(3) that the new s.4B is to be treated “as having always been in force”. In other words, it is retrospective.  

7. s.135, and in particular s.135(3), was the focus of attention in URS Corp Ltd. -v- BDW Trading Ltd. [2023] PNLR 28, a decision of the Court of Appeal. URS was an appeal about, inter alia, limitation under the DPA 1972. A developer discovered that buildings it had developed and sold had been negligently constructed, and brought a claim against the structural engineer it alleged was responsible. The principal issue was whether the developer, having sold the buildings for full value without knowledge of the defects, had suffered any loss. Having survived an application to strike-out, the developer obtained permission to amend its claim so as to include claims under the DPA, taking advantage of the extended limitation periods available under the BSA, which had not come into force at the date of issue. The engineer objected to the proposed amendments, arguing inter alia that s.135(3) it could not “change the rules of the game” in relation to litigation which had already been commenced. Rejecting that argument, Coulson LJ described s.135(3) as “a clear and widely drawn provision plainly designed to achieve retrospectivity” (para.166). 

8. URS has been cited in at least two further cases: 

8.1. in Adriatic Land 5 Ltd. -v- Leaseholders at Hippersley Point [2023] UKUT 271 (LC), the absence from para.9 of Schedule 8 of any provision corresponding to s.135(3) was cited in support of the submission that para.9 did not have retrospective effect. The Court accepted that in the absence of such words the provision was not intended to apply retrospectively. But it side-stepped this argument by holding that the focus in para.9 was on when the relevant costs were payable, not when the charges which gave rise to them were incurred. If service charges would have become payable after para.9 was enacted (even if pursuant to services performed before that time), then the leaseholder was relieved of the obligation to pay. See paras.119-170 of that decision; 

8.2. in Triathlon Homes -v- Stratford Village Development and others [2024] UKFTT 26 (PC) it was similarly argued that the contrast between s.135(3) and s.124(2) (in the context of Remediation Contribution Orders) justified the conclusion that the latter were not intended to be capable of being made retrospectively. Again, the argument failed (or was side-stepped), the Tribunal holding that the words of the sub-section were wide enough to encompass orders being made in relation to costs already incurred by the time the Act came into force. On the Tribunal’s analysis, this did not make the provision “retrospective” – see paras.70-79 of that decision. 

9. In some circumstances, the limitation period for claims under s.1 DPA 1972 may be even longer than 30 years. This is because, by virtue of s.135(4), if the extended limitation period expired in the first year of the life of the BSA (i.e. in the period between 28 June 2022 and 28 June 2023), a person could bring a claim at any time within that year. Thus, a claim which accrued on 29 June 1992 could be issued at any time on or before 28 June 2023.  

10. There are, however, three restrictions on the scope of the extended limitation periods. 

11. The first restriction – although this will not trouble anyone for a while – is that the 30-year limitation period for claims under s.1 DPA 1972 only applies to claims which had arisen by 28 June 2022. A claim which arises after that date will be subject to the 15-year limitation period. (NB a claim under s.1 arises – or, in the wording of the 1972 Act, “accrues” – when construction reaches practical completion, or if it relates to rectification work undertaken post-completion, when that rectification work is completed – see s.1(5) thereof. 

12. The second restriction is that, by virtue of s.135(6) BSA 2022, nothing in s.135 applies in relation to a claim which had been settled by agreement or finally determined by a court or in arbitration before 28 June 2022. No doubt it was contemplated that, absent this provision, litigants might contend that they would not have compromised their case (or it would not have been decided as it was) under the law as it now stands. Whether or not such arguments would have succeeded in the absence of s.135(6) – and it frankly seems improbable that they would – the presence of that sub-section puts it beyond question that they will fail. 

13. The third restriction – and the one on which the rest of this paper will focus – is found in s.135(5), by which it is provided that: 

“(5) Where an action is brought that, but for subsection (3), would have been barred by the Limitation Act 1980, a court hearing the action must dismiss it in relation to any defendant if satisfied that it is necessary to do so to avoid a breach of that defendant’s Convention rights.” 

14. In the following paragraphs, the phrase “Convention Rights Defence” is used as a convenient shorthand for the defence enacted by this sub-section. 

15. Five features of the Convention Rights Defence merit particular mention. 

15.1. first, the words “but for subsection (3)” make clear that it is not the extended limitation periods themselves which are the focus of the section, but their retrospectivity. In other words, the mere fact that an action is permissible now which would not have been permissible before s.135 came into force is not enough to engage the Convention Rights Defence. It only arises in circumstances where causes of action have lapsed, but been revived by the Act; 

15.2. second, the only court which may exercise the power is “a court hearing the action.” Read literally, this might be thought to mean that the power to dismiss can only be exercised at trial. It is however unlikely that Parliament intended to exclude the Convention Rights Defence from the Court’s usual power to grant summary judgment. It is therefore suggested that “hearing” should be read as synonymous with “seised of;” 

15.3. third, the Court can only dismiss the action if is satisfied that it is necessary to do so. This is a stringent test, and obviously more difficult to satisfy than it would be if the word used were e.g. “desirable” or “expedient;” 

15.4. fourth, however, if the Court considers that the test of necessity is satisfied, it “must” dismiss the action. So s.135(5) confers minimal flexibility; if the test of necessity is not satisfied, the Court cannot dismiss the action, and if it is, the Court can do nothing but dismiss it; 

15.5. fifth, while s.135(5) is only engaged where, but for retrospectivity, a claim would be statute-barred, it does not say in terms that the breach of Convention rights must have been caused by that retrospectivity. Rather, the wording is such that if the sub-section applies (i.e. an action lapsed, but was then revived by the extended limitation periods), and the test of necessity is satisfied for any reason, the action must be dismissed. 

16. Two somewhat surprising conclusions emanate from that analysis. 

17. First – and following on from the point in para.15.1 above – the fact that it is retrospectivity, rather than the extended limitation periods themselves, which engages the Convention Rights Defence means that unless the claim is one which lapsed and then revived, a claimant can bring a claim at any time within the 30-year period, and the defendant will not be able to advance a defence based on the fairness of the trial. To put that in perspective, if a cause of action accrued on 27 June 2022, a claim based on it could be brought as of right any time before 27 June 2052. 

18. The imposition of unfair (or non-existent) limitation periods can itself infringe human rights. For example, in Volkov -v- Ukraine (Application 20722/11), a Judge argued that his removal from office on the grounds of an alleged disciplinary incident in respect of which no limitation period applied contravened his Article 6 rights, and this argument was upheld. By contrast, in Stubbings & Others v United Kingdom (Reference 22083/93), it was argued, unsuccessfully, that it was the shortness of the relevant limitation periods (in respect of claims for childhood sexual abuse) which contravened the Applicant’s human rights. 

19. The principles which emerge from cases such as this are that fair limitation periods are important for the following (connected) reasons: 

 19.1. to provide legal certainty and finality; 

 19.2. to protect Defendants from stale claims which might be difficult to counter,  

 19.3. to prevent any injustice which might arise if courts were required to decide upon events that took place in the distant past, and  

 19.4. to prevent disputes from being determined on the basis of evidence which has become unreliable or incomplete because of the passage of time.  

20. In that context, it is sobering to think that the 30-year limitation period provided for by s.135 means that acts undertaken by an apprentice builder at the age of 20 would still be within the primary limitation period when he or she turns 50 – or, perhaps more prejudicially still, acts undertaken at the age of 50 would still be actionable when the person turns 80. Indeed, if one considers that the cause of action accrues not at the date of the negligent act, but at the date of practical completion (which could be some years later), and also builds in the time it takes for a case to get from issue to trial, it is not outlandish to imagine that it could be 35 or even 40 years between performance of the act in question and the hearing of a claim flowing from it – almost the full duration of a person’s working life. 

21. In the Stubbings case to which reference is made above, the ECHR raised an eyebrow at the thought of trying events which had happened 20 years prior to trial (and for that reason, considered the 6-year limitation period of which complaint was made to be proportionate and reasonable); what, one wonders, would it make of a scheme that allows for an intervening period of maybe twice that length? Is there scope for a human rights challenge to the new s.4B? 

22. The second surprising consequence emerges from the point made in para.15.5 above, highlighting the absence of any overt connection between retrospectivity and the factor (whatever it might be) which is said to engage the Convention Rights Defence.  

23. The way s.135(5) is drafted, as long as the claim is one which had lapsed and was then revived, any breach of Convention Rights would be apt to exonerate a defendant, whether or not that breach is related to the cause of action having lapsed. Take the example of a situation where a key witness has passed away, rendering a fair trial impossible. If the cause of action accrued before 28 June 2016, then on the face of it a defendant could pray that in aid and seek the dismissal of the action, using the Convention Rights Defence. But if the cause of action accrued after 28 June 2016, it could not. Yet the effect of the witness’s death is unconnected to the fact that the cause of action lapsed, and is the same in both cases. That seems anomalous. 

24. Another example, and one that applies in a case in which the writer is instructed, is where repairs are undertaken prior to a claim being articulated, preventing the defendant from being able to inspect the alleged defects, or comment on the suitability of the chosen method of repair. An argument that that engages the Convention Rights Defence is only available if it so happens that the case is one in which the cause of action lapsed before 28 June 2022. Again, that seems anomalous. 

25. In such a case, even where the cause of action never lapsed, and where the Convention Rights Defence is accordingly unavailable, it might be possible to advance an argument that the destruction of the evidence represents an abuse of process justifying the strike-out of the action. But that is (a) a discretionary (or, perhaps more accurately, evaluative) decision; and (b) a difficult test to satisfy – see e.g. McDonald v Excalibur & Keswick Groundworks Ltd. [2023] EWCA Civ 18, where Nicola Davis LJ formulated the question in such cases as being: is the litigant’s conduct of such a nature and degree as to corrupt the trial process so as to put the fairness of the trial in jeopardy? It will also be seen that this test focusses on the conduct of the respondent, rather than the impact on the applicant. 

26. What Parliament seems likely to have had in mind in enacting s.135(5) was the situation where a potential defendant takes some step on the basis that time has elapsed, and is therefore prejudiced when the potential claim is revived. That certainly seems to have been the understanding of Coulson LJ in URS, where (at para.170) he postulated the example of a developer who destroys documents at the end of the 6-year period, on the understanding that the time for a claim against him had elapsed. Such a person, he said “may be able to deploy that fact at trial pursuant to s.135(5).” 

27. This effect could perhaps have been achieved by adding, at the end of s.135(5), words such as “by virtue of that fact”. As drafted, however, s.135(5) seems to go somewhat further than the example given by Coulson LJ. 

28. The examples given so far focus on the Article 6(1) right to a fair trial. In truth, while s.135(5) extends beyond that, and contemplates a breach of all or any Convention Rights, it is difficult to see what Convention Rights other than the Article 6(1) right are ever likely to fall for consideration.  

29. It might be argued that Article 1 of the First Protocol – which entitles every natural and legal person the protection of their property from deprivation or interference – could also be engaged. What, for example, if a defendant had allowed the benefit of a policy of insurance to lapse, on the basis that the limitation period had passed, meaning that instead of meeting a successful claim out of a call on the policy, they had to meet it out of their own pocket? Such a policy would be a possession, at least as that concept was interpreted by the Supreme Court in Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46 (see para 114). But I would argue that such a case would not fall within s.135(5), because it is not by trying the claim that the defendant is being deprived of its rights under the policy. That deprivation resulted from the defendant’s prior act in surrendering it. 

30. While there are relatively few decisions on the scope of s.135, it can be expected that actions reliant on the extended limitation period will be issued in considerable numbers. Decisions on the new s.4B, and the Convention Rights Defence, can be expected soon. 

31. While I take sole ownership of the opinions expressed in this paper, I would like to record my thanks to Christy Burzio for her assistance with research, on the Human Rights Act in particular. 

135 Limitation periods 

(1) After section 4A of the Limitation Act 1980 insert— 

“4B Special time limit for certain actions in respect of damage or defects in relation to buildings 

(1) Where by virtue of a relevant provision a person becomes entitled to bring an action against any other person, no action may be brought after the expiration of 15 years from the date on which the right of action accrued. 

(2) An action referred to in subsection (1) is one to which— 

(a) sections 1, 28, 32, 35, 37 and 38 apply; 

(b) the other provisions of this Act do not apply. 

(3) In this section “relevant provision” means— 

(a) section 1 or 2A of the Defective Premises Act 1972; 

(b) section 38 of the Building Act 1984. 

(4) Where by virtue of section 1 of the Defective Premises Act 1972 a person became entitled, before the commencement date, to bring an action against any other person, this section applies in relation to the action as if the reference in subsection (1) to 15 years were a reference to 30 years. 

(5) “commencement date” means the day on which section 135 of the Building Safety Act 2022 came into force.” 

(2) In section 1(5) of the Defective Premises Act 1972, for “the Limitation Act 1939, the Law Reform (Limitation of Actions, &c.) Act 1954 and the Limitation Act 1963” substitute “the Limitation Act 1980”. 

(3) The amendment made by subsection (1) in relation to an action by virtue of section 1 of the Defective Premises Act 1972 is to be treated as always having been in force. 

(4) In a case where— 

(a) by virtue of section 1 of the Defective Premises Act 1972 a person became entitled, before the day on which this section came into force, to bring an action against any other person, and 

(b) the period of 30 years from the date on which the right of action accrued expires in the initial period, section 4B of the Limitation Act 1980 (inserted by subsection (1)) has effect as if it provided that the action may not be brought after the end of the initial period. 

(5) Where an action is brought that, but for subsection (3), would have been barred by the Limitation Act 1980, a court hearing the action must dismiss it in relation to any defendant if satisfied that it is necessary to do so to avoid a breach of that defendant’s Convention rights. 

(6) Nothing in this section applies in relation to a claim which, before this section came into force, was settled by agreement between the parties or finally determined by a court or arbitration (whether on the basis of limitation or otherwise). 

(7) In this section— 

“Convention rights” has the same meaning as in the Human Rights Act 1998; 

“the initial period” means the period of one year beginning with the day on which this section comes into force.