Is loss that is otherwise recoverable in the tort of negligence irrecoverable if it is incurred (i) without an enforceable legal obligation to do so, and (ii) in respect of property in which the claimant has no proprietary interest, because such loss is voluntarily incurred, and that means it falls outside the scope of the defendant’s duty of care and/or is too remote? 

No. There is no rule of law which means that the voluntary carrying out of the repairs by BDW render the repair costs (1) outside the scope of the duty of care owed or (2) too remote. Whether these costs were recoverable is a question of fact and depends on legal issues of causation and mitigation which will be assessed when considering liability. The effect of this is that developers who incur costs to remedy building safety defects, even in the absence of a claim from a third party, may be able to recover these costs from the negligent builder or designer.

Does section 135 of the BSA (extended limitation period) apply in the present circumstances and, if so, what is its effect?  

Yes. Section 135(3) BSA applies to claims which are dependent on s.1 DPA. To make a claim, a developer would need to establish that it applies to actions arising out of a liability that is dependent on section 1 of the DPA even though it is not an action brought under section 1 of the DPA. Such actions are clearly “in respect of damage or defects in relation to buildings”. The Supreme Court said the alternative would undermine the purpose of the BSA i.e. to ensure those responsible for historic building safety defects are held to account.

There is a possible sting in the tail for developers or other relevant claimants seeking to recover losses incurred despite the existence of a potential limitation defence. This is because section 135 (3) BSA does not retrospectively affect the answer to the questions of causation, mitigation and remoteness which determine whether a developer can recover compensation from a negligent designer or contractor for the cost of remedial work carried out before June 2022. This will be a matter to be addressed when considering liability.

Does section 1(1)(a) of the DPA also apply to property developers? 

Yes. The Supreme Court have said that there is no reason why a developer cannot both owe a duty and be a owed a duty, particularly where the developer is the first owner.

Is BDW entitled to bring a contribution claim against the URS under section 1 of the Contribution Act when there has been no judgment or settlement between BDW and any third party and no third party has ever asserted any claim against BDW?

Yes. The Supreme Court held that the right to contribution arises when: (i) damage has been suffered by C for which D1 and D2 are each liable; and (ii) D1 has paid or been ordered or agreed to pay compensation for the damage to C. On the facts, BDW paid compensation (in kind) for the damage suffered by the homeowners by carrying out the repairs. The fact that there has been no judgment against the developer or admission of liability or settlement between it and any of the homeowners, nor any claim, does not prevent the claim for contribution.