No abuse of process: High Court permits BSA claim to proceed

The Technology and Construction Court has handed down an important decision relating to a building safety dispute, refusing an application to strike out a claim brought by Taylor Wimpey UK Limited under the Defective Premises Act 1972 (DPA). The judgment provides helpful guidance on the interaction between the Building Safety Act 2022’s retrospective limitation reforms and earlier claims by a different claimant that were determined in arbitration proceedings shortly before those limitation reforms came into force.

Background

The case relates to alleged fire safety defects affecting external wall systems in the Victoria Wharf development in Cardiff, a residential scheme comprising seven high-rise buildings constructed between 2005 and 2008. Following the identification of fire safety defects after Grenfell, claims were pursued against the original design and build contractor, Taylor Woodrow Construction (Woodrow). 

In August 2021, Taylor Wimpey Developments Limited (TWDL), as the original employer of Woodrow under the building contracts, commenced an arbitration against Woodrow. TWDL advanced claims in contract, negligence and under section 1 of the DPA. The legal landscape changed shortly afterwards; with the Building Safety Act 2022 (BSA) coming into force on 28 June 2022. Section 135 of the BSA retrospectively extended the limitation period for historic DPA claims to 30 years. However, by a first partial award in May 2022, the arbitrator determined that TWDL’s breach of contract and DPA claims were time barred and the arbitrator later refused permission for TWDL to revive its DPA claim after section 135 came into force, on the grounds that it had previously been ‘finally determined’ under section 135 (6) of the BSA. TWDL’s claim in the arbitration therefore proceeded solely as a claim in the tort of negligence, which was ultimately unsuccessful. 

In October 2025, Taylor Wimpey UK Ltd (TWUK) issued and served separate High Court proceedings against Woodrow. Unlike TWDL, TWUK brought its claim as a party who acquired an equitable ownership interest in the development and relied upon section 1(1)(b) of the DPA. TWUK also sought a Building Liability Order under section 130 of the BSA against Woodrow’s parent company, Vinci Construction Holding Limited.

The Defendants responded by applying to strike out the claim as an abuse of process.

The arguments

The Defendants’ position

The Defendants argued that the proceedings represented an attempt to relitigate substantially the same defects claim that had already been pursued by TWDL to final determination in the earlier arbitration. They contended that TWUK should not be permitted a second opportunity to pursue claims arising out of the same underlying defects. 

In particular, they relied upon the rule in Henderson v Henderson, arguing that any claim by TWUK could and should have been raised during the arbitration. They also contended that the proceedings amounted to an impermissible collateral attack on the arbitrator’s awards. 

TWUK’s position

TWUK argued that the DPA creates separate statutory rights for different categories of claimant.

TWDL’s claim had been brought under section 1(1)(a) of the DPA, as the original employer of Woodrow. In contrast, TWUK’s claim, was brought under section 1(1)(b) of the DPA, as a person that had acquired a proprietary interest in the development. These were distinct causes of action belonging to different entities. 

TWUK further argued that it was not a party to the arbitration, could not compel its joinder to those proceedings and had never had its own statutory claim determined on the merits. The retrospective limitation extensions introduced by section 135 of the BSA therefore fell to be considered independently in relation to TWUK’s cause of action. 

The Court’s decision

Mr Justice Pepperall dismissed the Defendants’ strike-out application. 

The Court accepted that section 1 of the DPA is capable of conferring independent rights of action on multiple parties in respect of the same defective building. The original developer may have a claim under section 1(1)(a), while subsequent legal or equitable owners may have their own claims under section 1(1)(b). 

The Court held that TWUK’s claim was not extinguished merely because TWDL’s separate DPA claim had failed on limitation grounds in the arbitration. TWUK possessed its own statutory cause of action and that cause of action had never previously been adjudicated upon. 

The Court rejected the argument that the claim constituted Henderson v Henderson abuse. The Court found that TWUK’s claim could not reasonably have been pursued within the arbitration and that TWUK had independent rights under section 1(1)(b) of the DPA. 

The Court also rejected the allegation of collateral attack. TWUK was not challenging the arbitrator’s findings. Rather, it was pursuing a separate statutory claim that had not previously been determined and which benefited from the BSA’s retrospective limitation provisions. 

Significantly, the Court emphasised Parliament’s intention in enacting section 135 of the BSA, namely to extend liability for historic residential building defects and enable more claims to be brought than would previously have been possible. 

Significance of the case

The decision is likely to become an important authority on the practical operation of the BSA’s retrospective limitation rules.

The judgment confirms that different parties may possess different statutory rights under the DPA, even where those rights arise from the same defects. The failure of one claimant’s claim does not necessarily prevent another claimant from pursuing its own cause of action.

The Court’s approach demonstrates a willingness to give practical effect to Parliament’s intention in extending limitation periods for historic DPA claims. Defendants are unlikely to succeed merely by pointing to earlier proceedings involving related but different parties, and where the later claimant has its own independent statutory right of action. 

The decision reinforces the principle that abuse of process remains an exceptional doctrine. Where Parliament has expressly extended the period for bringing historic building safety claims, the courts are unlikely to shut out claims unless a defendant can demonstrate a genuinely abusive misuse of the court’s processes. 

Perhaps most importantly, the judgment reflects the broader policy objectives underpinning the BSA. The Court recognised that Parliament intended to make it easier for those affected by historic residential building defects to pursue those responsible.

For industry participants grappling with building safety remediation exposure and related litigation, the judgment is a significant reminder that the BSA continues to reshape the litigation landscape and that courts are likely to interpret its remedial provisions in a manner consistent with Parliament’s intention to facilitate, rather than restrict, the recovery of historic building safety defects.

Mark Lennon, Samantha Fozzard, Kate Adair and James Colvin of Gateley Legal acted for Taylor Wimpey UK Limited, with Counsel; Jonathan Selby KC and Daniel Khoo, appearing on its behalf.