Section 149 of the Building Safety Act 2022 (the "Act") introduces a new cause of action for claims against suppliers and manufacturers of cladding products. "Cladding product" is defined in the section as meaning a cladding system or any component of a cladding system. The section applies where four conditions are met and each condition is discussed in further detail below.
Condition A
Condition A is met where, at any time before 28 June 2022: (1) a person fails to comply with a cladding product requirement in relation to a cladding product, (2) a person who markets or supplies a cladding product makes a misleading statement in relation to it or (3) a person manufactures a cladding product that is inherently defective.
Condition B
Condition B is met where, the cladding product is attached to, or included in, the external wall of a relevant building in the course of works carried out in the construction of, or otherwise in relation to, the building. Section 147 of the Act notes that "relevant building" for the purpose of section 149 means (1) a building which consists of a dwelling or (b) a building which contains two or more dwellings.
Condition C
Condition C is met where, when those works are completed: (1) in a case where the relevant building consists of a dwelling, the building is unfit for habitation or (2) in a case where the relevant building contains one or more dwellings, a dwelling contained in the building is unfit for habitation.
Condition D
Condition D is met where the facts referred to in Condition A were the cause, or one of the causes, of the building or dwelling being unfit for habitation.
Damages and limitation period
If the above conditions are met, the person referred to in Condition A will be liable to pay damages to a person with a relevant interest in relation to the relevant building for personal injury, damage to property or economic loss. Section 147 notes that "relevant interest", in relation to a building in England and Wales, means (a) in a case where the building consists of a dwelling, a legal or equitable interest in the building and (b) in a case where the building contains one or more dwellings, a legal or equitable interest in (i) the building, or (ii) any dwelling contained in the building.
Section 149(8) of the Act notes that the right of action that a person has by virtue of the section is to be regarded as having accrued: (a) in a case where the works referred to in Condition B are carried out in the construction of the relevant building, when the construction is completed and (b) in any other case, when the works are completed.
Section 10B of the Limitation Act 1980 stipulates that an action under section 149 of the Act shall not be brought after: (a) if the right of action accrued before 28 June 2022, the expiration of the period of 30 years from the date on which it accrued and (2) if the right of action accrued on or after 28 June 2022, the expiration of the period of 15 years beginning with the date on which it accrued.
Comment
Judicial guidance is awaited to understand the approach the courts will adopt when considering whether a cladding product is "inherently defective" or is held to cause or contribute to a building being rendered unfit for habitation.
The definition of "cladding product" provided in the section is broad and, considering its retrospective effect, the section should lead to a flurry of cases against suppliers and manufacturers of cladding products.
This blog is part of a series published by Howard Kennedy LLP on the Building Safety Act. For more information please contact Sharon Stark or Stuart Duffy. For other blogs, please click here.
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