Moved by
Lord Greenhalgh
245: After Clause 145, insert the following new Clause—
“Liability relating to construction products
Liability relating to construction products: general definitions
In this section, section (Liability relating to construction products) and (Liability for past defaults relating to cladding products)—
“the 1991 Regulations” means the Construction Products Regulations 1991 (S.I. 1991/1620);
“the 2011 Regulation” means Regulation (EU) No. 305/2011 (regulation laying down harmonised conditions for the marketing of construction products);
“the 2019 Regulations” means the Construction Products (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/465);
“construction products regulations” means regulations under paragraph 1 of Schedule 12;
“construction product requirement” means a requirement under—
(a) construction products regulations,
(b) the 2011 Regulation, or
(c) the 2019 Regulations;
“relevant building” means—
(a) a building which consists of a dwelling, or
(b) a building which contains two or more dwellings;
“relevant interest”, in relation to a building in England and Wales, means—
(a) in a case where the building consists of a dwelling, a legal or equitable interest in the building, and
(b) in a case where the building contains one or more dwellings, a legal or equitable interest in—
(i) the building, or
(ii) any dwelling contained in the building;
“relevant interest”, in relation to a building in Scotland, means—
(a) in a case where the building consists of a dwelling, any right or interest (including a servitude or heritable security) in or over the building, and
(b) in a case where the building contains one or more dwellings, any right or interest (including a servitude or heritable security) in or over—
(i) the building, or
(ii) any dwelling contained in the building;
“requirement” includes a prohibition or restriction.”
Member’s explanatory statement
This new Clause contains definitions relevant to the next two new Clauses tabled by the Minister.
246: After Clause 145, insert the following new Clause—
“Liability relating to construction products
(1) This section applies where Conditions A to D are met.
(2) Condition A is that, at any time after the coming into force of this section—
(a) a person fails to comply with a construction product requirement in relation to a construction product,
(b) a person who markets or supplies a construction product makes a misleading statement in relation to it, or
(c) a person manufactures a construction product that is inherently defective.
(3) Condition B is that, after Condition A is met, the construction product referred to in subsection (2)(a), (b) or (c) is installed in, or applied or attached to, a relevant building in the course of works carried out in the construction of, or otherwise in relation to, the building.
(4) Condition C is that, when those works are completed—
(a) in a case where the relevant building consists of a dwelling, the building is unfit for habitation, or
(b) in a case where the relevant building contains one or more dwellings, a dwelling contained in the building is unfit for habitation.
(5) Condition D is that the facts referred to in subsection (2)(a), (b) or (c) were the cause, or one of the causes, of the building or dwelling being unfit for habitation.
(6) The person referred to in subsection (2)(a), (b) or (c) is liable to pay damages to a person with a relevant interest in relation to the relevant building for personal injury, damage to property or economic loss suffered by that person as a result of the facts referred to in subsection (4)(a) or (b).
(7) A term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, any liability arising under this section is void.
(8) For the purposes of section 10B(1) of the Limitation Act 1980 and section 18ZD(1) of the Prescription and Limitation (Scotland) Act 1973, the right of action that a person has by virtue of this section is to be regarded as having accrued—
(a) in a case where the works referred to in subsection (3) are carried out in the construction of the relevant building, when the construction is completed, and
(b) in any other case, when the works are completed.
(9) In subsection (2)(a), “construction product”—
(a) in relation to a construction product requirement under construction products regulations, has the meaning specified in those regulations;
(b) in relation to a construction product requirement under the 2011 Regulation, has the meaning specified in the 2011 Regulation;
(c) in relation to a construction product requirement under the 2019 Regulations, has the meaning specified in the 2011 Regulation as it had effect immediately before IP completion day.
(10) In subsection (2)(b) and (c) “construction product” has the meaning specified in the 2011 Regulation.”
Member’s explanatory statement
This new Clause makes provision for a new right of action where breach of regulations relating to construction products causes, or is a factor in, a building or dwelling becoming unfit for habitation.
247: After Clause 145, insert the following new Clause—
“Liability for past defaults relating to cladding products
(1) This section applies where Conditions A to D are met.
(2) Condition A is that, at any time before the coming into force of this section—
(a) a person fails to comply with a cladding product requirement in relation to a cladding product,
(b) a person who markets or supplies a cladding product makes a misleading statement in relation to it, or
(c) a person manufactures a cladding product that is inherently defective.
(3) Condition B is that, after Condition A has been met, the cladding product is attached to, or included in, the external wall of a relevant building in the course of works carried out in the construction of, or otherwise in relation to, the building.
(4) Condition C is that, when those works are completed—
(a) in a case where the relevant building consists of a dwelling, the building is unfit for habitation, or
(b) in a case where the relevant building contains one or more dwellings, a dwelling contained in the building is unfit for habitation.
(5) Condition D is that the facts referred to in subsection (2)(a), (b) or (c) were the cause, or one of the causes, of the building or dwelling being unfit for habitation.
(6) The person referred to in subsection (2)(a), (b) or (c) is liable to pay damages to a person with a relevant interest in relation to the relevant building for personal injury, damage to property or economic loss suffered by that person as a result of the facts referred to in subsection (4)(a) or (b).
(7) A term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, any liability arising under this section is void.
(8) For the purposes of section 10B(2) of the Limitation Act 1980 and section 18ZD(2) of the Prescription and Limitation (Scotland) Act 1973, the right of action that a person has by virtue of this section is to be regarded as having accrued—
(a) in a case where the works referred to in subsection (3) are carried out in the construction of the relevant building, when the construction is completed, and
(b) in any other case, when the works are completed.
(9) Where an action is brought under this section in England and Wales that, but for section 10B(2) of the Limitation Act 1980, would have been barred by that Act, a court hearing the action must dismiss it in relation to any defendant if satisfied that it is necessary to do so to avoid a breach of that defendant’s Convention rights.
(10) Where an action is brought under this section in Scotland that, but for section 18ZD(2) of the Prescription and Limitation (Scotland) Act 1973, would have been barred by that Act, a court hearing the action must dismiss it in relation to any defender if satisfied that it is necessary to do so to avoid a breach of that defender’s Convention rights.
(11) In this section “cladding product requirement” means—
(a) in relation to a time before IP completion day, a requirement relating to a cladding product under—
(i) the 1991 Regulations, or
(ii) the 2011 Regulation as it had effect in EU law at that time, and
(b) in relation to a time after IP completion day, a requirement relating to a cladding product under—
(i) the 2011 Regulation, or
(ii) the 2019 Regulations.
(12) In this section—
“cladding product” means a cladding system or any component of a cladding system;
“Convention rights” has the same meaning as in the Human Rights Act 1998;
“external wall”, in relation to a building, includes any part of a roof pitched at an angle of more than 70 degrees to the horizontal if that part of the roof adjoins a space within the building to which persons have access otherwise than for the purpose of carrying out repairs or maintenance.”
Member’s explanatory statement
This new Clause provides for a right of action where historic defaults relating to cladding cause, or are a factor in, a building or dwelling becoming unfit for habitation.
248: After Clause 145, insert the following new Clause—
“Liability relating to construction products: limitation in England and Wales
In the Limitation Act 1980, after section 10A insert—
“10B Special time limit for actions relating to construction products
(1) An action under section (Liability relating to construction products)of the Building Safety Act 2022 shall not be brought after the expiration of 15 years from the date on which the right of action accrued.
(2) An action under section (Liability for past defaults relating to cladding products) of the Building Safety Act 2022 shall not be brought after—
(a) if the right of action accrued before the commencement date, the expiration of the period of 30 years from the date on which it accrued, and
(b) if the right of action accrued on or after the commencement date, the expiration of the period of 15 years beginning with the date on which it accrued.
(3) In a case where—
(a) a right of action under section (Liability for past defaults relating to cladding products) of the Building Safety Act 2022 accrued before the commencement date, and
(b) the expiration of the period of 30 years beginning with the date on which the right of action accrued falls in the year beginning with the commencement date,
subsection (2)(a) has effect as if it referred to the expiration of that year.
(4) In subsections (2) and (3) “the commencement date” is the day on which section (Liability for past defaults relating to cladding products) of the Building Safety Act 2022 came into force.
(5) No other period of limitation prescribed by Part 1 of this Act applies in relation to an action referred to in subsections (1) and (2).
(6) Sections 28, 32 and 35 of this Act apply in relation to an action referred to subsections (1) and (2), but otherwise Parts 2 and 3 of this Act (except sections 37 and 38) do not apply for the purposes of this section.””
Member’s explanatory statement
This amendment provides for the limitation periods in England and Wales for the rights of action created by the previous two new clauses tabled by the Minister.
249: After Clause 145, insert the following new Clause—
“Liability relating to construction products: limitation in Scotland
(1) The Prescription and Limitation (Scotland) Act 1973 is amended as follows.
(2) After section 18ZC insert—
“18ZD Actions relating to construction products
(1) An action under section (Liability relating to construction products) of the Building Safety Act 2022 may not be brought after the expiration of 15 years from the date on which the right of action accrued (see subsection (8) of that section).
(2) An action under section (Liability for past defaults relating to cladding products) of the Building Safety Act 2022 may not be brought after—
(a) if the right of action accrued before the commencement date, the expiration of the period of 30 years from the date on which it accrued (see subsection (8) of that section), and
(b) if the right of action accrued on or after the commencement date, the expiration of the period of 15 years beginning with the date on which it accrued.
(3) In a case where—
(a) a right of action under section (Liability for past defaults relating to cladding products) of the Building Safety Act 2022 accrued before the commencement date, and
(b) the expiration of the period of 30 years beginning with the date on which the right of action accrued falls in the year beginning with the commencement date,
subsection (2)(a) has effect as if it referred to the expiration of that year.
(4) In subsections (2) and (3) “the commencement date” is the day on which section (Liability for past defaults relating to cladding products) of the Building Safety Act 2022 came into force.
(5) No other period of limitation specified by this Part of this Act applies in relation to an action referred to in subsection (1) or (2).
(6) In the computation of a period of time specified in subsection (1) or (2), there is to be disregarded any time during which the person seeking to bring the action (P)—
(a) was under a legal disability by reason of nonage or unsoundness of mind, or
(b) failed to bring the action by reason of—
(i) fraud on the part of the person against whom the action is to be brought (D) or the part of any person acting on D’s behalf, or
(ii) error induced by words or conduct of D or any person acting on D’s behalf,
(but not including, for the purposes of paragraph (b), any time occurring after P could with reasonable diligence have discovered the fraud or error mentioned in that paragraph).
(7) For the purposes of subsection (6)(b), it does not matter whether D, or the person acting on D’s behalf, intended the fraud or the words or conduct to cause P to fail to bring the action.”
(3) In section 7(2) (extinction of obligations by prescriptive periods of twenty years), at the end insert “or any obligation to pay damages arising from liability under section (Liability relating to construction products) or (Liability for past defaults relating to cladding products) of the Building Safety Act 2022 (see section 18ZD of this Act).”
(4) In section 19CA(1) (interruption of limitation period: arbitration), after “18ZC(2)” insert “, 18ZD(1) or (2)”.
(5) In Schedule 1, in paragraph 2 (exceptions from the 5 year prescriptive period under section 6), after paragraph (ga) insert—
“(gb) to any obligation to pay damages arising from liability under section (Liability relating to construction products) or (Liability for past defaults relating to cladding products) of the Building Safety Act 2022;”.”
Member’s explanatory statement
This amendment provides for the limitation periods in Scotland for the proposed new rights of action relating to construction products.
250: After Clause 145, insert the following new Clause—
“Construction products: costs contribution orders
Costs contribution orders: general definitions
In this section and sections (Costs contribution orders made by courts) to (Costs contribution orders: assessments)—
“the 2011 Regulation” means Regulation (EU) No. 305/2011 (regulation laying down harmonised conditions for the marketing of construction products);
“the 2019 Regulations” means the Construction Products (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/465);
“the 2020 Regulations” means the Construction Products (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1359);
“construction product”—
(a) in relation to a construction product requirement under construction products regulations, has the meaning specified in those regulations;
(b) in relation to a construction product requirement under the 2011 Regulation, has the meaning specified in the 2011 Regulation (or, in Northern Ireland, in the 2011 Regulation as having effect in EU law from time to time);
(c) in relation to a construction product requirement under the 2019 Regulations, has the meaning specified in the 2011 Regulation as it had effect immediately before IP completion day;
(d) in relation to a construction product requirement under the 2020 Regulations, has the meaning given by regulation 2 of those Regulations;
“construction products regulations” means regulations under paragraph 1 of Schedule 12;
“construction product requirement”, in England and Wales or Scotland, means a requirement under—
(a) construction products regulations,
(b) the 2011 Regulation, or
(c) the 2019 Regulations;
“construction product requirement”, in Northern Ireland, means a requirement under—
(a) construction product regulations,
(b) the 2011 Regulation as having effect from time to time in EU law,
(c) the 2019 Regulations, or
(d) the 2020 Regulations;
references to an “interest” in a building or dwelling include—
(a) in England and Wales, any legal or equitable interest in the building or dwelling;
(b) in Scotland, any right or interest (including a servitude or heritable security) in or over the building or dwelling;
(c) in Northern Ireland, any estate within the meaning given by section 45(2) of the Interpretation Act (Northern Ireland) 1954 in the building or dwelling;
“relevant building” means—
(a) a building which consists of a dwelling, or
(b) a building which contains two or more dwellings;
“requirement” includes a prohibition or restriction.”
Member’s explanatory statement
This new Clause contains definitions relevant to the new Clauses tabled by the Minister in relation to costs contribution orders in respect of construction products.
251: After Clause 145, insert the following new Clause—
“Costs contribution orders made by courts
(1) The Secretary of State may by regulations make provision for courts to make costs contribution orders on the application of the Secretary of State.
(2) The regulations may only make provision for the making of costs contribution orders under this section in cases where—
(a) Conditions A to D are met, and
(b) any prescribed conditions are met.
(3) Condition A is that a person (“the defaulter”) is convicted of an offence consisting of a failure to comply with a construction product requirement in relation to a construction product.
(4) Condition B is that, after the failure to comply referred to in subsection (3), the construction product is installed in, or applied or attached to, a relevant building in the course of works carried out in the construction of, or otherwise in relation to, the building.
(5) Condition C is that, when those works are completed—
(a) in a case where the relevant building consists of a dwelling, the building is unfit for habitation, or
(b) in a case where the relevant building contains one or more dwellings, a dwelling contained in the building is unfit for habitation.
(6) Condition D is that the failure to comply referred to in subsection (3) was the cause, or one of the causes, of the building or dwelling being unfit for habitation.
(7) A “costs contribution order” under this section is an order requiring the defaulter to pay an amount to a person with a prescribed interest in the building or any dwelling contained in the building.
(8) Regulations under this section must provide for the amount to be paid to a person under a costs contribution order under this section to be such amount as the court making the order considers just and equitable in respect of the costs that the person has reasonably incurred, or in the view of the court is likely to reasonably incur, in respect of works to make the building or dwelling fit for habitation.
(9) The regulations may make provision as to the matters which may or must be taken into account by a court in determining—
(a) whether, against whom and in favour of whom to make a costs contribution order under this section;
(b) the amount required to be paid by a person under a costs contribution order under this section.
(10) The regulations may make provision in relation to—
(a) enforcement of a costs contribution order under this section;
(b) court powers to order the defaulter to pay—
(i) any costs incurred by the Secretary of State under regulations under section (Costs contribution orders: assessments)(assessments) in respect of the application, and
(ii) any costs incurred by the Secretary of State in making the application.
(11) The regulations may make provision about how a costs contribution order under this section relates to other remedies, including in particular—
(a) provision to secure that, taking a costs contribution order under this section together with other remedies—
(i) a person does not incur liability more than once in respect of the same costs;
(ii) a person is not entitled to be reimbursed more than once for the same costs;
(b) provision preventing a person to whom any amount is payable under a costs contribution order under this section from pursuing any other legal remedy for the recovery of such an amount.
(12) In this section “prescribed” means prescribed by regulations under this section.”
Member’s explanatory statement
This new Clause confers a regulation-making power for the courts to make costs contribution orders.
252: After Clause 145, insert the following new Clause—
“Costs contribution orders made by the Secretary of State
(1) The Secretary of State may by regulations make provision for the Secretary of State to make costs contribution orders.
(2) The regulations may only make provision for the making of costs contribution orders in cases where—
(a) Conditions A to D are met, and
(b) any prescribed conditions are met.
(3) Condition A is that a person (“the defaulter”) is convicted of an offence consisting of a failure to comply with a construction product requirement in relation to a construction product.
(4) Condition B is that, after the failure to comply referred to in subsection (3), the construction product is installed in, or applied or attached to, a relevant building in the course of works carried out in the construction of, or otherwise in relation to, the building.
(5) Condition C is that, when those works are completed—
(a) in a case where the relevant building consists of a dwelling, the building is unfit for habitation, or
(b) in a case where the relevant building contains one or more dwellings, a dwelling contained in the building is unfit for habitation.
(6) Condition D is that the failure to comply referred to in subsection (3) was the cause, or one of the causes, of the building or dwelling being unfit for habitation.
(7) A “costs contribution order” under this section is an order requiring the defaulter to make a payment to a person with a prescribed interest in the building or any dwelling contained in the building.
(8) Regulations under this section must provide for the amount to be paid to a person under a costs contribution order under this section to be such amount as the Secretary of State considers just and equitable in respect of the costs that the person has reasonably incurred, or in the view of the Secretary of State is likely to reasonably incur, in respect of works to make the building or dwelling fit for habitation.
(9) The regulations may make provision as to the matters which may or must be taken into account by the Secretary of State in determining—
(a) whether, against whom, and in favour of whom, to make a costs contribution order under this section;
(b) the amount required to be paid by a person under a costs contribution order under this section.
(10) The regulations may make provision for the Secretary of State to issue a warning notice to a person before determining whether to make a costs contribution order under this section against that person.
(11) The regulations may make provision requiring that a costs contribution order under this section—
(a) be made in a prescribed form;
(b) contain prescribed information.
(12) The regulations may make provision about service of a costs contribution order under this section including—
(a) how an order is to be served;
(b) when an order is to be taken as having been served;
(c) the persons on whom an order must be served.
(13) The regulations may make provision in relation to—
(a) enforcement of a costs contribution order made under this section (including enforcement by the Secretary of State);
(b) powers of the Secretary of State to order the defaulter to pay any costs incurred by the Secretary of State under section (Costs contribution orders: assessments) in respect of a costs contribution order under this section.
(14) The regulations may make provision about how a costs contribution order under this section relates to other remedies, including in particular—
(a) provision to secure that, taking a costs contribution order under this section together with other remedies—
(i) a person does not incur liability more than once in respect of the same costs;
(ii) a person is not entitled to be reimbursed more than once for the same costs;
(b) provision preventing a person to whom any amount is payable under a costs contribution order under this section from pursuing any other legal remedy for the recovery of such an amount.
(15) The regulations may make provision for persons to apply to the Secretary of State for a review of a costs contribution order under this section.
(16) The regulations may make provision for appeals to a court or tribunal in relation to—
(a) a decision of the Secretary of State to make or not make a costs contribution order under this section;
(b) a refusal by the Secretary of State to review a costs contribution order under this section;
(c) the outcome of a review by the Secretary of State of a costs contribution order under this section.
(17) The regulations may in particular include provision suspending a requirement to pay an amount due under a costs contribution order under this section pending the determination or withdrawal of an appeal or the determination of a review.
(18) In this section “prescribed” means prescribed by regulations under this section.”
Member’s explanatory statement
This new Clause confers a regulation-making power for the Secretary of State to make costs contribution orders.
253: After Clause 145, insert the following new Clause—
“Costs contribution orders: assessments
(1) For the purposes of sections (Costs contribution orders made by courts) and (Costs contribution orders made by Secretary of State), the Secretary of State may by regulations make provision for the Secretary of State to appoint persons to assess—
(a) whether the conditions for the imposition of a costs contribution order under either of those sections are met;
(b) the works required to make a building or dwelling fit for habitation;
(c) what interest a person has in a building or dwelling;
(d) the costs that a person has reasonably incurred or is likely to reasonably incur in respect of works referred to in paragraph (b);
(e) the amount that a person should be required to pay under a costs contribution order.
(2) The regulations may include provision about the criteria to be met by a person before they may be appointed as an assessor.
(3) The regulations may make provision about assessments, including provision—
(a) conferring power on an assessor to require that persons provide such information as the assessor may reasonably require for the purposes of an assessment;
(b) for the provision of information by an assessor to the Secretary of State (including any information provided under paragraph (a)).
(4) Regulations under subsection (3)(a) may include provision for criminal offences relating to a failure to provide information, or to the provision of false or misleading information.
(5) Regulations under subsection (3)(a) creating a criminal offence must have the effect that—
(a) the offence is—
(i) triable summarily only, or
(ii) triable summarily or on indictment,
(b) the offence is punishable only—
(i) with a fine, or
(ii) with a term of imprisonment or a fine (or both),
(c) where the offence is triable summarily only, any fine with which the offence is punishable in Scotland or Northern Ireland does not exceed level 5 on the standard scale,
(d) where the offence is triable summarily or on indictment, any fine with which the offence is punishable on summary conviction in Scotland or Northern Ireland does not exceed the statutory maximum, and
(e) any term of imprisonment with which the offence is punishable on summary conviction does not exceed—
(i) in England and Wales, the relevant period,
(ii) in Scotland, 12 months, and
(iii) in Northern Ireland, 6 months.
(6) In subsection (5)(e)(i), “the relevant period” means—
(a) in relation to an offence that is triable summarily only—
(i) where the offence is committed before the coming into force of section 281 of the Criminal Justice Act 2003, 6 months, and
(ii) where the offence is committed after that time, 51 weeks;
(b) in relation to an offence that is triable summarily or on indictment—
(i) where the offence is committed before the coming into force of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020, 6 months, and
(ii) where the offence is committed after that time, 12 months.
(7) Regulations under subsection (3)(b) may make provision for the purpose of securing that there is (taking into account any power or duty to provide information under the regulations) no contravention of the data protection legislation.
(8) In subsection (7), “data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).”
Member’s explanatory statement
This new Clause confers a regulation-making power relating to assessments for the purposes of costs contribution orders.