Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 115
practical completion on an apartment development
between December 2003 and June 2004.19 The key
allegations that BDW raised were: “the unsuitable
nature of the Alumasc product and the omission of 昀椀re
barriers.” 20
Consideration of Relevant Defects in
the Decisions
In section 1(1)(b) of the DPA, the duties of the
person(s) taking on work in connection with
dwellings are described as being:
Ardmore, the contractor, had a limitation defence
under LA 1980 against any claims that might be
brought by BDW under section 1(1) of the DPA. This
became potentially ine昀昀ective when the provisions
of the BSA 2022 came into force.21 This legislative
change prompted BDW to issue a Letter of Claim to
Ardmore in July 2022, nearly 20 years after practical
completion, regarding 昀椀re safety defects at the
development.22
“done in a workmanlike or… professional manner, with
proper materials and so that as regards that work the
dwelling will be 昀椀t for habitation when completed.”
Based on a previous case,33 the types of defects that
the Court is likely to consider as falling under the
remit of the DPA, are the defects that will render
the dwelling un昀椀t for habitation. This relates
primarily to the safety of the users and / or make
the condition of the dwelling deteriorate over time.
The Court held that for defects based on aesthetics,
it is unlikely that it would make a dwelling un昀椀t for
habitation.
URS v BDW [2025]
In URS v BDW, BDW discovered structural design
defects in two of its multiple high-rise residential
building developments (Capital East and Freemens
Meadow) during its investigations in late 2019.23 BDW
carried out remedial works between 2020 to 2021. At
the time that repair costs were incurred, BDW no
longer had proprietary interest in the developments
and any action brought by third parties to BDW
whether under the DPA or in contract would have
been time barred under Limitation Act 1980.24
Vainker v Marbank [2024]
In Vainker v Marbank, numerous defects were
alleged, the most relevant of which are those that
could render the house ‘un昀椀t for habitation,’
namely the alleged brickwork 昀椀nish and the glass
balustrade defects. When considering which defects
were relevant the Judge cited Rendlesham Estates
plc & Ors v Barr Ltd [2014] EWHC 3968 (TCC), a
case concerning defects in an apartment building
that could lead to mould and damp. In Rendlesham
v Barr, the judgement says that: 34
In March 2020, BDW brought a claim against URS
(who provided structural design services to BDW) in
tort.25 In October 2021, in URS v BDW’s preliminary
issue trial, BDW v URS [2021] EHWC 2796 (TCC),26
the Judge, Mr Justice Fraser, considered that the
defects presented a health and safety risk.27
“(iii) There may be a breach of the duty in respect of a defect
which means that the condition of the dwelling is likely
to deteriorate over time and render the dwelling un昀椀t for
habitation when it does so…
In June 2022, s.135 BSA came into force which
retrospectively extended the limitation period
under section 1 of the DPA. BDW applied to amend
its case relying on s.135 of the BSA (2022). BDW
succeeded in amending its claim and bringing new
claims against URS under s.1 of the DPA and under
the Civil Liability (Contribution) Act 1978.28 The
amendments were granted by the High Court in
December 2022.29
(iv) ... it must be the case that minor or aesthetic
defects which do not contribute, and are not capable
of contributing to, un昀椀tness for habitation cannot be
relevant in this consideration and damages cannot be
recovered in respect of such a defect merely because other
defects render the dwelling un昀椀t for habitation.”
Mrs Vainker alleged that the brickwork was
“permanently damp” and “the stained brickwork forms
part of the structural element of the building and that
prolonged saturation of the mortar may well result in
sulphate damage to the mortar joints.” 35 The alleged
water ingress and structural risk formed part of
the basis of Mrs Vainker’s argument that the House
was un昀椀t for habitation at the time of completion.36
Additionally it was alleged that these defects were
due to SCd’s failure to exercise reasonable skill and
The High Court decisions were appealed and heard
by the Court of Appeals in April 2023.30 The Court
of Appeals dismissed the appeals.31 The Supreme
Court granted permission to appeal on four
grounds, which included the e昀昀ect of applying s135
of the BSA (2022) and additionally whether URS
owed a duty to BDW under section 1(1)(a) of the DPA
and if BDW’s alleged losses were recoverable for
breach of that duty. 32
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