Barratts wins clean sweep before seven Justices in the Supreme Court

21/05/25

Barratts, the national homebuilder, has prevailed in a Supreme Court case which raised a plethora of issues resembling a tort law examination paper. The appeal was heard over the course of a week by a seven-member panel.

Following the Grenfell Tower tragedy the government encouraged developers to inspect their high-rise buildings for defects. Barratts did so and found problems in some of its old buildings, which presented a risk to life and limb. It evacuated the residents and fixed the defects immediately. It did so without facing any claims by the residents, and in circumstances where any such claims would have been time-barred. Barratts has claimed the cost of the repairs against its structural engineers in negligence, contribution, and under the Defective Premises Act 1972 (“DPA”). The engineers sought to strike out the claim on the basis that Barratts had carried out the repairs voluntarily, not having been under any legal obligation to do so.

The main points from the leading judgment of Lords Burrows and Hamblen, and a concurring judgment from Lord Leggatt, include the following:

• There is no common law principle which bars a claimant from recovering losses which it has incurred voluntarily. At most, this is a factor that might go to mitigation. It was in any event doubtful that Barratts had acted voluntarily in any meaningful sense, given that it was under a moral duty to protect residents from the risk of death and injury.
• A claim may be brought under the Civil Liability (Contribution) Act 1978 even where the primary claimant, in this case the resident (C), has brought no claim against the primary defendant (D1). The mere fact of a payment, or a payment in kind, from D1 to C is enough to ground D2’s liability to contribute.
• The 30-year limitation period, introduced retrospectively under the Building Safety Act 2022 to improve the ability of residents to bring claims against developers, also applies ‘collaterally’ to claims by a developer against its contractors. The repairs carried out by Barratts in this case were therefore deemed to have been carried out pursuant to an in-time liability to the residents.
• Section 1 of the DPA may be used by commercial developers to bring claims against their contractors, even though the main purpose of s.1 is to facilitate claims by ‘ordinary citizens’ against their developers.
• The Court deferred to a future case the thorny issue of when a negligence claim accrues in the context of defective buildings, i.e. on the date of completion of the project, the date of physical damage to the building, or the date of reasonable discoverability. It therefore left open the question of whether the long-maligned ruling of the House of Lords in Pirelli should be overruled.

A link to the judgement is here.