Background
Following the Grenfell Tower disaster, in which over 70 people died as a result of a catastrophic fire, investigation revealed that the main reason why the fire engulfed the Grenfell Tower so quickly was the use of inappropriate cladding material around the outside of the building. As a result, there has, understandably, been much activity on the part of the UK and Scottish Governments to try to make sure that such a disaster does not happen again. That includes certain legislation enacted by the UK Government – the Building Safety Act 2022 (the 2022 Act) – which seeks to provide a mechanism under which people with a relevant interest may, in certain defined circumstances, claim damages associated with the remedial works necessary to correct historic errors in the design and construction of certain buildings, including creating new statutory liability by changes to the Defective Premises Act 1972 (the 1972 Act) and, retrospectively, extending the limitation period within which claims can be made for breach of obligations under the 1972 Act, as amended – in some cases from six years to 30 years.
Against that background, the decision of the UK Supreme Court in URS Corporation Limited ('URS') v BDW Trading Limited ('BDW'), which touched upon such matters, is a very important one. It was published at the end of May 2025 and, understandably, there has been much written about it in the construction and property media since then.
Absence of mention of Scots law by commentators
While the case is undoubtedly a landmark decision in the law of England, it should be viewed with some care in Scotland, particularly if it might be believed that the absence of the mention of Scots law by commentators means that the decision in the case applies without qualification in Scotland. That would be an unwarranted and erroneous belief.
Law applied in the case does not apply to Scotland
The case under consideration by the Supreme Court was one in which, stated briefly, a claim was made in 2020 by a major developer, BDW, against URS to recover the cost of remedial works to rectify alleged design defects by URS in some of BDW's developments at a time when, importantly, BDW no longer had any proprietary interest in the relevant developments. At the time when the remedial works were carried out by BDW, no claim had been intimated against BDW by any third party owner or occupier of the developments and any action brought by third parties to enforce obligations owed to them by BDW in relation to defects would have been time barred under the provisions of the Limitation Act 1980 (the 1980 Act) as then applicable.
Following the changes brought about by the 2022 Act, BDW sought to make an amended claim against URS under the English tort of negligence, an alleged breach of section 1 of the 1972 Act and the extension of the limitation period for claims arising out of any such breach as a result of changes to the 1980 Act brought about by section 135 of the 2022 Act. The case also dealt with whether BDW could bring a claim against URS for contribution pursuant to section 1 of the Civil Liability (Contribution) Act 1978 ('the 1978 Act'). It is important to note, however, that the 1972 Act as amended, the 1980 Act as amended, section 135 of the 2022 Act and section 1 of the 1978 Act do not apply to Scotland. As a result, it may be appreciated why it is considered appropriate to sound a warning that, in Scotland, it is necessary to view the decision of the Supreme Court with some caution.
Possible indirect effect on Scots law in the future?
The need for caution is particularly important because Scots law may well have to grapple with similar questions in the future without the background of the English law of tort, the 1972 Act as amended, the 1980 Act as amended, section 135 of the 2022 Act and section 1 of the 1978 Act.
What may be relevant for consideration in Scotland as a result of the decision is the difficult question of the manner in which some of the judges in the Supreme Court approached certain general points of principle in English law which apply well beyond the realms of construction and whether that may have an impact on Scots law in the future, including the law of delict in Scotland which deals with breach of duty. The case was considered to be of such importance that a panel of seven judges was assigned to consider it. Understandably, perhaps, none of the Scottish judges in the Supreme Court were included in that panel assigned to decide the case.
The key takeaways for Scotland
The law applied in the case does not apply to Scotland.
The decision may come to have an indirect effect on Scots law in the future when it has to deal with similar problems against a background of different common law and statutory rules. A consideration of the extent to which the decision of the Supreme Court might affect Scots law going forward is a complex one and well beyond the scope of a brief update such as this. It should be stressed, however, that the approach of Scots law in certain areas of its common law and relevant statutory provisions that apply in Scotland differ from the position in England, including, importantly, that in connection with the law of contribution.
