Part 2: Building Safety Act 2022 – new civil claims for construction product liability

The Building Safety Act 2022 (the “Act”) was given royal assent in April and whilst many provisions of the Act are not yet in force, there are a series of key provisions which come into force on 28 June 2022. These provisions include new civil claims related to construction product liability used for residential projects with longer limitation periods.

The Act introduces two new causes of action against manufacturers of construction products in a similar vein as the already existing claim against contractors under the Defective Premises Act 1972 for the construction of new dwellings.

Section 148 of the Act introduces a new cause of action against manufacturers of construction products which allows someone with a legal or equitable interest in a dwelling in England and Wales to bring a claim against the manufacturer if four conditions are met:

A. The manufacturer (a) fails to comply with a construction product requirement, (b) makes a misleading statement in the marketing of or supply of a construction product or (c) manufactures a construction product that is inherently defective;

B. That construction product is then installed, applied or attached to a dwelling in the course of works to the dwelling building;

C. When the works are completed the dwelling (or if the building contains more than one dwelling, i.e. a block of flats, a dwelling in the building) is unfit for habitation; and

D. The facts which satisfy condition A above were the cause, or one of the causes, of the dwelling being unfit for habitation.

This broad construction product liability claim is limited to future claims as the facts which satisfy condition A need to have occurred on/after 28 June 2022.  The limitation period for this new claim is 15 years from the date of accrual of the right of action (being when the works under condition B were completed).

There is, however, also a new cause of action under s149 of the Act which affects already manufactured/marketed cladding products.  This is, like the claim under s148, a cause of action which allows someone with a legal or equitable interest in a dwelling in England and Wales to bring a claim against the manufacturer.  It also has four conditions which must be met and these are very similar to those for the s148 cause of action so I do not set these out here but the manufacturing/marketing/supply of the cladding product must have occurred before 28 June 2022.  The limitation period for this new cladding product liability cause of action is similar to the new limitation period for claims under the Defective Premises Act 1972 relating to the construction of new dwellings (which I discussed in my previous blog post) meaning that:

• if the cladding product was manufactured/supplied/marketed (i.e. the facts satisfying condition A for s149) and the works under the condition B for s149 are completed before 28 June 2022 then the limitation period is 30 years from the completion of those works (but if that period would expire between 28 June 2022 and 28 June 2023 then it is further extended to 28 June 2023)
• if the cladding product was manufactured/supplied/marketed before 28 June 2022 but the works under condition B are completed on or after 28 June 2022 then the limitation period is 15 years from the completion of those works.

These new causes of action require the product in question to be a cause of the dwelling being unfit for habitation – only time will tell if the courts will continue to apply the existing test under the Defective Premises Act 1972 to these new claims under the Act.