Introduction

On 21 May 2025, the Supreme Court handed down its decision in URS Corporation Ltd v BDW Trading Ltd. The construction industry should take note, as it is uncommon for the Supreme Court to provide guidance on the meaning of any legislation – let alone a new and significant statute like the Building Safety Act 2022 (the BSA 2022).

This article examines two key aspects of the Supreme Court’s decision, which will inevitably have a material and ongoing impact on the industry: 

1. first, whether the voluntary undertaking of remedial works prevents a party from recovering the cost of doing so from other parties; and
2. second, whether developers (in addition to residential owners) are owed duties under the Defective Premises Act 1972 (the DPA 1972).

Background

BDW Trading Ltd (BDW) is a property developer, who appointed URS Corporation Ltd (URS) to provide structural and engineering design services in relation to several high-rise residential developments. 

In 2019, BDW discovered that two of those developments had structural defects (the Developments). Those defects presented a serious health and safety risk to occupants and were alleged to have been caused by URS’s failure to exercise reasonable skill and care in carrying out its original design work. By this time, however:

1. BDW no longer had a proprietary interest in the Developments; and
2. no claim had been made against BDW by any owner or occupier of the Developments (any claims against BDW, under the DPA 1972, would have been time-barred). 

In 2020 and 2021, BDW nevertheless carried out remedial works to the Developments. BDW said that it did so because, if left unremedied, the defects presented a serious risk to the health and safety of the occupants of the Developments. 

BDW initially made a claim against URS in negligence, seeking to recover the costs of the remedial works. 

Then, in 2022, the BSA 2022 came into force – including section 135, which retrospectively extended the limitation period for accrued claims under the DPA 1972: 

1. to 15 years, for a cause of action arising after the BSA 2022 came into force; and
2. to 30 years, for a cause of action arising before that date. 

Part way through the litigation, therefore, BDW sought to amend its claim – to add a claim against URS under section 1 of the DPA 1972 and under the Civil Liability (Contribution) Act 1978 (the Contribution Act 1978). 

The High Court decided that BDW could amend its claim to take into account the new BSA 2022. The Court of Appeal agreed. So, what did the Supreme Court say?

The principle of “voluntariness”

A central legal question in the case was: on what basis did BDW undertake the remedial works (and did that matter)? 

BDW undertook the remedial works despite the fact that it did not have any proprietary interest in the Developments and without any claim being made against it by any owner of the Developments. In that context, URS argued that BDW had simply volunteered to undertake the works. 

That was important, URS argued, because under English law a party who voluntarily incurs a loss cannot recover that loss from a third party. In URS’s view, the principle of “voluntariness” meant that any costs incurred by BDW fell outside the scope of any duty of care owed by URS and were therefore too remote to be recoverable from URS. 

The Supreme Court’s views

The Supreme Court rejected the notion that “voluntariness” should operate as a general bar to recovery in these circumstances. 

Whilst the conduct of a claimant – such as voluntarily assuming responsibility or liability – may be relevant to issues of legal causation and mitigation, this is a fact-specific inquiry rather than a matter of general principle. 

In other words, the Supreme Court refused to endorse a blanket rule that would always prevent a party from recovering costs simply because those costs had been incurred voluntarily.

On the facts of this case, the Supreme Court went further. It found that BDW had not acted as a true volunteer. Instead, BDW was compelled to act because of the serious risks of personal injury or death to the occupiers of the Developments if the defects were not remedied. This compulsion, arising from the nature of the defects and the potential consequences, distinguished BDW’s actions from those of a volunteer. BDW, said the Supreme Court, had no realistic alternative but to undertake the works.

Implications for developers

Where a party undertakes works to address life safety risks, the courts are clearly willing to examine the circumstances of the case and will not dismiss a claim simply because that party undertook the works voluntarily, or without legal compulsion. In such cases, the Supreme Court has made it clear that recovery of those costs from those who were ultimately responsible for the defects remains a possibility.

The decision leaves open the question of how the courts might approach cases where the defects in question do not give rise to life safety risks. If a developer were to remedy a defect voluntarily, and that defect was not a life safety risk, the outcome might be different. 

Even then, however, the Supreme Court’s analysis of BDW’s position in this case suggests that a court will examine carefully any suggestion that works really have been undertaken voluntarily.

The Contribution Act 1978

Another significant aspect of the Supreme Court’s decision in BDW v URS concerns the circumstances under which a developer, such as BDW, may seek a contribution from its supply chain in respect of building defects, even where it is not itself facing a claim from the current owners. 

Traditional approach challenged

A typical case might involve the current owners of a building identifying defects, and then bringing a claim against the original developer in relation to the cost of rectifying those defects. That developer may, in turn, advance claims against contractors, consultants, or other members of the supply chain – as a contribution to the damages that the developer is liable to pay. 

However, the Supreme Court made it clear that a developer (such as BDW) does not necessarily need to be the subject of a claim itself, before it can seek a contribution from others (such as URS).

Under the Contribution Act 1978, there is no requirement that a developer’s liability to the current owners must first be established – whether by a judgment, admission, or settlement – before the developer can make a claim for a contribution against others. 

The key consideration was whether damage has been suffered by the current owners, for which both BDW and URS were liable. If that is the case, the only question is whether or not BDW had paid, been ordered to pay, or agreed to pay compensation to the current owners.

In this case, BDW had undertaken remedial works at its own cost – the Supreme Court recognised this as BDW providing compensation in kind to the current owners. The Supreme Court therefore concluded that BDW could seek a contribution from URS. There was no need for BDW to be the subject of a formal claim, judgment, or admission of liability.

Implications for developers

The Supreme Court has made it clear that developers in the position of BDW can undertake remedial works and claim a contribution from their supply chain – all without the developer itself being the subject of a claim by the owners.

The Supreme Court’s analysis clearly endorses the behaviour of BDW and other developers – who may wish to act promptly in remedying defects, but who may have been concerned about prejudicing their ability to seek contributions from consultants, sub-contractors, or others in the supply chain.

The DPA 1972

Another central issue in BDW v URS was whether a developer, such as BDW, could be a beneficiary of the duties owed under section 1(1) of the DPA 1972. 

Section 1(1) of the DPA 1972 provides that any person undertaking work in connection with the provision of a dwelling owes a duty to ensure that the work is carried out in a workmanlike or professional manner, with proper materials, and so as regards that work the dwelling will be fit for habitation when completed. 

It was uncontroversial that BDW, as the original developer responsible for the design and construction of the Developments, owed this statutory duty to the owners. However, URS argued that BDW, as the developer, could not also be owed a duty under the DPA 1972. URS argued that the DPA 1972 draws a clear distinction between those who owe duties (such as developers and contractors) and those to whom duties are owed (owners).

The Supreme Court’s approach

The Supreme Court rejected URS’s argument, finding nothing in the wording of the DPA 1972 to prevent a developer from both owing a duty (to the owners) and being owed a duty (by contractors and others actually undertaking the work). 

The Supreme Court also pointed out in this case that BDW was not only the developer but also the first owner of the Developments – a category of person that the DPA 1972 was expressly designed to protect.

Implications for developers

The Supreme Court’s decision confirms that developers of residential buildings have a statutory route for bringing claims against contractors or consultants who have breached their duties under the DPA 1972 (in addition, or as an alternative, to any claim for breach of contract or negligence). 

In this context, it is worth bearing in mind that claims under the DPA 1972 now benefit from an extended limitation period, introduced by the BSA 2022.

Conclusion

The Supreme Court’s decision in BDW v URS provides welcome clarity on several important issues that, following the introduction of the BSA 2022, had been the source of some uncertainty – and so the cause of numerous arguments between parties involved in cladding claims.

The Supreme Court’s position on “voluntariness” and contribution claims will likely encourage the prompt remediation of life safety defects – particularly, but not exclusively, those relating to cladding and building facades – by offering comfort to those undertaking such works that ultimate recourse against the original design and construction teams and supply chain may still be possible.