EWJ August 62 2025 web - Journal - Page 41
The Relevance of Voluntariness
When Considering Loss in
Negligence After BDW v URS
by Catherine Piercy KC and Emma Hynes
In its anxiously awaited decision in URS Corporation
Ltd v BDW [2025] UKSC 21, the Supreme Court considered issues arising from the ongoing challenge of
remediating unsafe buildings following the Grenfell
Tower tragedy and the passing of the Building Safety
Act 2022. This article considers the issue of loss in
negligence, the first ground of appeal tested in the
Supreme Court.
dation costs; and (iv) loss under the heading of “reputational damage losses”. URS said that because BDW
was not under a legal liability to carry out the remedial
works, these losses were really incurred to protect its
reputation. For that reason, URS said, these losses
were not in scope of its duty.
In a trial of a preliminary issue, URS’s argument was
rejected by Mr Justice Fraser (as he then was): BDW
had a duty to repair, and only that which was truly attributable to “reputational damage” was out of URS’s
scope of duty. The more traditional losses – repairs,
investigation and accommodation – were in URS’s
scope of duty and were not too remote to be
recovered.
The facts of the case
After the Grenfell Tower fire, developers – including
BDW – were encouraged to investigate their previous
work on high rise buildings for and remediate defects
that risked safety.
BDW was the developer and freehold owner of two
high rise buildings in Leicester, which in 2019, were
discovered to have significant structural issues, risking
collapse. By the time of the discovery, however, BDW
had sold all its proprietary interests in the buildings.
URS, a structural engineering company, had
performed the design of the buildings under its
professional services contract with BDW.
URS appealed the decision as to the scope of duty and
remoteness, but BDW did not, so the issue as to the recoverability of reputational damage was taken no further. The Court of Appeal upheld the High Court as
to the scope of duty and remoteness of loss.
The voluntariness principle in the Supreme Court
The issue took on a new nuance in the Supreme
Court. The parties agreed that URS had assumed responsibility to BDW by way of its professional services
contract, such that URS would take reasonable care
in providing structural designs. The parties agreed
that that duty extended to lability for pure economic
loss.
In 2020 and 2021, BDW carried out remedial works
on the developments, even though there had been no
claim made against it in respect of the structural defects. BDW’s declared reason for doing so was that
the defects presented a risk to the occupants, and
more, a disaster could cause serious damage BDW’s
reputation.
URS did not focus on the heads of loss, instead
arguing that the losses BDW claimed were voluntarily incurred and therefore unrecoverable as a matter
of principle. URS put forward two reasons for this:
first, at the time BDW carried out the repairs, it had
no proprietary interest in the buildings; secondly, it
had no legal obligation to remediate them. No claims
had been issued against it, and any claims would have
been time barred at that time.
In March 2020, BDW claimed against URS in
negligence. On the enactment of the Building Safety
Act 2022, and the extension of limitation under the
Defective Premises Act 1972, BDW suddenly had a viable claim for breach of statutory duty, and sought
(and was permitted) to amend the claim to include it.
This will be considered in a further article by Gatehouse Chambers’ Construction Team.
Notwithstanding that, the claim in the tort of
negligence continued, and raised thorny issues of the
scope of duty in negligence, remoteness, causation
and mitigation.
In the courts below, URS had not relied on the
principle of voluntariness and so the point had not
been fully considered. In the Court of Appeal, Coulson LJ rejected, briefly, URS’s argument that BDW
was under no obligation to third parties because, as a
matter of fact, at the time that BDW sold their various
interests in the flats and buildings, it would have been
liable in contract, tort or statutory duty by the Defective Premises Act 1977. Further, although BDW might
have been able to rely on a limitation defence, it was
not obliged to do so. As Coulson LJ neatly said:
The preliminary issue and the appeals
It was common ground that URS had assumed a duty
to BDW under its professional services contract. But
URS did not accept liability for BDW’s losses, as
claimed at first instance under the heads of: (i) repair
costs; (ii) investigation costs; (iii) alternative accommoEXPERT WITNESS JOURNAL
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