URS v BDW: Supreme Court to revisit developer claims, limitation, and building safety duties 

In URS Corporation Ltd v BDW Trading Ltd [2023] EWCA Civ 772, the Court of Appeal delivered a landmark judgment affirming that a developer can bring a tortious claim against a design consultant for latent structural defects discovered years after practical completion—even where the developer no longer owns the property.  

The decision, which has significant implications for limitation periods, duties under the Defective Premises Act 1972 (“DPA 1972”), and the scope of recoverable losses in construction disputes was however referred to the Supreme Court, with judgment expected imminently. The decision is anticipated to clarify several critical legal principles affecting developers, consultants, and insurers alike. In the meantime, we thought it would be useful to provide a reminder of what has happened so far in this long-running dispute.    

BDW Trading Ltd (BDW), a property developer, engaged URS Corporation Ltd (URS) as structural engineering consultant for two residential developments—Capital East in London and Freemans Meadow in Leicester—constructed between 2005 and 2012. Several years after practical completion was achieved, and the properties had been sold, BDW discovered structural design defects that posed health and safety risks, albeit at that time no physical damage had manifested. 

Despite no longer owning the buildings, BDW undertook remedial works and brought a negligence claim against URS to recover its costs incurred in doing so. At the time of BDWs claim: 

• The contractual limitation period had expired. 

• The six-year limitation period under the DPA 1972 had expired. 

• No third-party claims had been brought against BDW. 

In 2021, the Technology and Construction Court ruled that BDW’s losses were actionable in tort and that the cause of action accrued at practical completion. Following the introduction of the Building Safety Act 2022 (BSA 2022), BDW was granted permission to amend its pleadings to include new claims under Section 1 of the DPA 1972—benefiting from the Act’s retrospective 30-year limitation period introduced by Section 135 of the BSA 2022—and under Section 1 of the Civil Liability (Contribution) Act 1978, despite no third-party claims having yet been made.  

URS appealed both the preliminary ruling and the permission to amend, prompting a comprehensive review by the Court of Appeal. That review ultimately upheld the TCC’s findings and dismissed the appeals.  

In dismissing the appeal, the Court of Appeal made a number of crucial findings, namely that:  

• URS owed a conventional duty of care to BDW at the time of the negligent design. The fact that BDW no longer owned the buildings nor had been sued by residents was irrelevant. A limitation defence is a procedural bar, not a denial of underlying liability. 

• For claims for pure economic loss (i.e. losses without the presence of physical damage), the cause of action in tort accrues at practical completion, not upon discovery of the defect. This aligns tort claims with contractual principles and avoids reliance on outdated interpretations of “damage.” 

• A proprietary Interest is not required for economic loss claims. Even if it were, BDW had a proprietary interest at the time the duty arose and when the damage occurred. 

• Section 135 BSA 2022 applies retrospectively to ongoing proceedings. Developers are within the class of claimants under the DPA 1972, and claims can include common parts of buildings. 

• A crystallised third-party claim is not required. A theoretical or potential liability is sufficient to trigger a contribution claim under the 1978 Act. 

URS was subsequently granted permission to appeal to the Supreme Court, with the hearing taking place in December 2024 and judgment expected imminently.  

The Birketts view 

Whilst this case offers several important takeaways for developers, consultants and those advising on construction risk and liability, the Supreme Court’s decision will undoubtedly be pivotal in shaping the future of construction liability and building safety litigation. 

What to watch for in the Supreme Court 

• Will the Court find that voluntarily incurred losses—without legal obligation or proprietary interest—fall outside the scope of a duty of care? 

• Will it confirm that Section 135 of the Building Safety Act 2022 extends limitation periods for related negligence claims? 

• Will it clarify whether the DPA 1972 applies to developers, not just purchasers? 
• Will it allow contribution claims where no third-party claim or settlement has occurred?

We will provide a further update once the judgment is available.