Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 118
(whether builder, architect or engineer) who was
directly responsible for the building safety defect.66
This might penalise responsible developers who are
proactive in identifying and remedying building
safety defects.67
These rulings will give building owners and
developers the con昀椀dence to undertake remedial
works and recover costs from their supply chains,
even though they are not facing claims. An aim
of the BSA 2022 is to hold those responsible for
building safety defects liable by giving the broadest
interpretation of the legislation possible, as the
Courts encourage developers to carry out repairs to
remove dangers to occupants.
The Supreme Court decision quoted the Secretary
of State’s explanation:
“Retrospectivity is central to achieving the aims and
objectives of the BSA. Many of the building safety issues
identi昀椀ed in the wake of the Grenfell Tower 昀椀re arise in
relation to buildings constructed many years ago…. A
retrospective approach provides for e昀昀ective routes to
redress against those responsible for historical building
safety defects that have only recently come to light, whatever
level of the supply chain they operated at.” 68
Acknowledgements
We would like to thank our colleagues, Antony
Davis and Joan Kennedy, for providing insight and
expertise that greatly assisted this research.
Antony Davis is a Senior Consultant, forensic
architect, and expert witness in J.S. Held’s
Construction Advisory practice. Based in London,
Antony has led teams on award winning projects
in the UK and, as a Chartered Architect, he has
worked on large-scale projects that are based in
the UK and Ireland. He has specialized knowledge
of transport / railway / infrastructure projects,
having worked as a Technical Director across various
projects. Among those are the 150 Bishopsgate
development / Residential Tower, Crossrail, London
Underground and Network Rail stations. Working
with government bodies and local authorities,
Antony has extensive experience with submission of
consents and approvals, producing tender package
information and reviewing contract administration.
Conclusion
Based on the High Court’s decision on BDW
v Ardmore [2024], it appears that there is
another route to bring claims under the DPA via
adjudication for construction contracts (within the
de昀椀nition of the Housing Grants, Construction and
Regenerations Act 1996). However, this is still being
tested as Ardmore was allowed to appeal the High
Court’s decision, and the hearing is scheduled for
October 2025.
Now that the BSA 2022 has extended the DPA
limitation period to 30 years, the DPA would apply
to recovery actions against consultants, designers
and contractors. For consultants, designers
and contractors, retaining the relevant critical
documentation to stand behind what they have
done on a project going back up to 30 years and
going forward up to 15 years (based on the 28 June
starting point that the initiated by the BSA 2022)
is now crucial as they are less likely to have reliable
witness evidence available to cover such long
periods. Record keeping demonstrating the design
process, decision making, and implementation will
be essential.
Antony can be reached at adavis@jsheld.com
or +44 20 7438 1550.
Joan Kennedy is a Senior Consultant in J.S. Held’s
Construction Advisory practice. She is a designer
with a diverse international portfolio, who developed
her technical expertise working in Singapore, Kuala
Lumpur, and the Philippines. She has been involved
in the delivery of high-end residential developments,
public housing, conservation buildings, hotel and
retail developments, and mixed-used developments.
She has worked in the design, project, and contract
administration for large scale projects, She has
provided technical assistance with complex and
high value claims in cases in the UK, Middle East,
and Southeast Asia.
This additional area of exposure to construction
professionals has now been created, as developers
can now pursue a direct statutory route to
construction professionals rather than relying
on a claim in negligence or breach of contract.
This direct route is likely to impact the cost and
availability of the professional indemnity cover
market for construction professionals and introduce
more claims into the construction industry. This may
result in more costs where contractors, designers,
and consultants will need to put more resources
into responding to claims in an industry which the
government has already identi昀椀ed as having low
productivity rates.
EXPERT WITNESS JOURNAL
Joan can be reached at joan.kennedy@jsheld.com
or +44 20 7438 1550.
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OCTOBER/NOVEMBER 2025
