Navigating building and fire safety claims: liability for construction/cladding products

There have been many changes to building and fire safety claims and it is easy to be confused by the evolving landscape. In the fifth in a six-part series explaining the most important legal vehicles being used, Chris Bates, Sara Stephens and Jamil Sanaullah discuss construction/cladding products.

The introduction of liability relating to construction/cladding products under sections 147 to 151 of the Building Safety Act 2022 is a lesser known new liability in the building safety landscape, but one which has potential significant consequences for the construction and property industries.

The cause of action arises from various non-compliances related to construction/cladding products with respect to works to a residential building, which causes the building to be unfit for habitation. For cladding products, this cause of action has a 30-year retrospective limitation period where the works in question were completed before 28 June 2022. For cladding products and the wider category of construction products, where the works were completed on or after this date, there is a 15-year limitation period. Liability for these causes of action can result in damages payable to a person with an interest in the building.

Readers may be forgiven for wondering how this cause of action differs from a claim under the Defective Premises Act 1972. It differs in that it potentially broadens legal liability not only to those actively involved in the relevant construction project (ie designers and contractors) but also (through this cause of action) to those who manufacture, market and supply construction/cladding products used in the project.

At the time of writing, there is not yet any published judicial treatment of this new cause of action but, as explored in this article, its use may be of particular interest to owners, developers and contractors seeking to pass on liability to manufacturers, marketers and suppliers of construction products.

What buildings and defects are covered

The type of building covered is a building that is a dwelling or a building containing two or more dwellings. This can therefore cover houses, residential buildings and mixed-use buildings with at least two dwellings, but does not cover commercial or any other non-residential buildings.

With respect to defects, the key issue is whether the non-compliance has resulted in the building being unfit for habitation. The test of fitness for habitation is likely to be the same as that under the 1972 Act. It is worth noting that the cladding products’ cause of action is obviously directly aimed at products that create a fire safety risk, with the definition of a cladding product including a cladding system or any component of a cladding system. The cause of action for construction products more generally is wider and could relate to other products that cause a structural risk or water ingress issue (or another serious problem), which leads to a lack of fitness for habitation.

Who can bring a claim and who can face a claim?

Any person with a ‘relevant interest’ in the relevant building who has suffered personal injury, damage to property or economic loss as a result of the product causing the dwelling to be unfit for habitation, can bring a claim. The reference to economic loss is likely to include the costs of rectifying defects in the relevant building.

Relevant interest (for England and Wales) is defined as a legal or equitable interest in the dwelling or the building containing the dwelling. This would cover freeholders and leaseholders but, unlike the 1972 Act, this cause of action would appear not to cover developers on the basis of ordering the works (if they no longer have a relevant interest in the building). That said, it may be possible for developers (and others further down the supply chain) to indirectly rely on the cause of action by bringing a claim against (for example) a manufacturer for a contribution under the Civil Liability (Contribution) Act 1978 and alleging that the manufacturer is liable to the owner for the same damage as the developer. This would be through the developer asserting that the manufacturer is liable to the owner by virtue of the cladding/construction products cause of action.

As to parties who may be subject to a liability, the 2022 Act is clear that it can cover a person who markets or supplies a construction/cladding product, as well as a person who manufactures the product. It also covers a person that fails to comply with a construction/cladding product requirement. A construction/cladding product requirement is defined by reference to various specific construction products regulations or (in the case of construction products) any further regulations included in paragraph 1 of Schedule 11 of the 2022 Act. It is assumed these requirements largely apply to product manufacturers, marketers and suppliers.

What is the threshold of liability?

The threshold of liability is based on establishing conditions A to D as contained in sections 148 and 149 of the 2022 Act.

Under condition A, there must be: (i) a failure to comply with a construction/cladding product requirement (as discussed above); (ii) a marketer or supplier of the product that makes a misleading statement in relation to the product; or (iii) the manufacturer having manufactured a product that is inherently defective.

Under condition B, the product is then installed, applied or attached to the relevant building (or, for cladding products, to the external wall of the relevant building) in the course of works to construct the building or otherwise in relation to the building. This means that (like with the prospective change to liability under the 1972 Act) this cause of action is relevant not just for the original construction of the building, but also for further works undertaken during its lifespan.

Under condition C, once the works are complete, the dwelling must be unfit for habitation. And, under condition D, the non-compliance under condition A must be the cause (or one of the causes) of the dwelling being unfit for habitation.

What is their relevance to the new building safety landscape?

Liability for construction/cladding products is a new and untested remedy introduced by the 2022 Act. As such, many questions and uncertainty about how this legal vehicle will work in practice remains.

That said, it is clearly a further expansion of potential liability for serious defects with residential properties. It is primarily aimed at those responsible for the manufacture, marketing and supply of construction (including cladding) products that cause a building to be unsafe. They introduce a direct route for owners to sue such people for remedying defects with a very generous 30-year retrospective limitation period for cladding products and a 15-year prospective limitation period for cladding and other construction products. Before this, such claims may well have been impossible or very difficult. They arguably also allow developers, contractors and consultants to rely on this cause of action to seek contribution from product manufacturers, marketers and suppliers when themselves facing liability to owners.

Claims relying on this cause of action are currently being used by parties involved in building and fire safety claims and it is only a matter of time before there is a court judgment deciding, and giving guidance on, a claim under this cause of action.

This article was originally published in the Estates Gazette in July 2025.