Streamlined English court process proposed for Building Safety Act claims

As part of the reforms introduced by the Building Safety Act, new statutory routes were established to address building safety defects. The First Tier Tribunal (FTT) and Technology and Construction Court (TCC) are dealing with a growing number of these claims. However, they are often technically and legally complex and can span the jurisdictions of both the FTT and the TCC.

In June, the Building Safety Act Working Group proposed updates to the TCC guide to seek to address these issues and introduce a streamlined resolution process for building safety claims. The updates aim to provide clearer procedures and a more efficient, cost-effective and expert-driven approach to resolving these disputes.

FTT and TCC streamlining

The working group is looking to streamline procedures and coordination between the FTT and TCC. Currently, BSA claims are dealt with in different courts. The FTT hears applications for remediation orders, which require a landlord to carry out works to remedy building safety defect, or remediation contribution orders, which require others to contribute to remediation costs. The High Court hears claims for building liability orders, which extend the building safety liability of one body corporate to an associated body corporate. Defective Premises Act and building safety-related damages claims are dealt with in the TCC.

In some cases, proceedings for these BSA claims may address the same relevant defects, leading to practical difficulties and the risk of conflicting factual findings, causing uncertainty for the parties involved.

Proposed amendments

Full details on the specifics of the working group's proposed updates to the TCC Guide are yet to be finalised as well as confirmation as to when any amendments will be incorporated into the guide. However, the working group has indicated the main aspects of the proposed amendments. 

• The inclusion of BSA claims within the definition of "TCC claims" covered under the guide.
• Introduction of a requirement at the outset of proceedings for parties to complete a questionnaire for review by a TCC judge. This questionnaire will request details of any orders sought by the parties, enabling the judge to identify any overlapping FTT and TCC issues. If on review it is determined there is overlap and proceedings are to be heard together, the tribunal will be presided over by a single TCC judge who will sit in both the TCC and the FTT. It is understood that separate judgments for the FTT and TCC proceedings would be issued.
• Clarification that the pre-action protocol for construction and engineering disputes applies to BSA claims before TCC proceedings are commenced. Updates would also encourage parties to resolve disputes via alternative dispute resolution before and during formal proceedings.
• Detailed guidance on common procedural issues that can occur during proceedings for BSA claims, particularly during overlap in jurisdiction of the TCC and FTT. This guidance is expected to comment on the requirement for early, targeted and comprehensive disclosure of documents, including witness and expert evidence relevant to the key technical issues in dispute.

Osborne Clarke comment

Once further detail is published on the working group's proposed updates to the TCC Guide, parties bringing BSA claims should consider the updated provisions closely. For instance, if introduced, parties will need to complete the initial questionnaire carefully and make a strong case for either a combined or separate listing depending on the particular nature of their case.

It is positive that many building safety claims are settling outside court, but this does mean that the body of case law on the new remedies is less developed than in other areas of construction law, leaving lawyers and industry with less insight into how the courts will approach them. It is hoped that these anticipated updates to the guide will support the TCC and FTT in their handling BSA claims, and help both courts to continue to establish and develop key principles for each remedy.

The impact of the Building Safety Act continues to ripple through the sector. We expect 2025 to bring further legal developments and commentary on these new remedies.  

Osborne Clarke is at the forefront of Building Safety Act litigation strategy and we will be closely tracking when updates to the TCC Guide will land. If you’d like tailored guidance on this and other developments, please get in touch.