Taylor Wimpey UK Limited v (1) Taylor Woodrow Construction and (2) Vinci Construction Holding Limited

A recent case is a reminder that contractors and other construction professionals often owe a duty under the Defective Premises Act 1972 (“DPA”) to several people.

The Technology and Construction Court (TCC) recently decided a case relating to the DPA and the Building Safety Act 2022 (the “BSA”), involving claims concerning the same defects that were advanced in different proceedings by different (but connected) claimants.

The key issue was whether the court claim, advanced subsequently and by a different company, was an abuse of process where a claim in arbitration by a connected company had already been dismissed.

Key Takeaways

1. One defect can give rise to several DPA claims. Multiple people may be owed duties and independently hold a cause of action under s.1 of the DPA. Dismissing one claim may not protect the contractor from other claims.
2. Related companies are not automatically privies (entities which share a sufficient degree of identification to make it just to hold that a decision on one is binding on the other). Companies may hold independent rights and interests, and, in this case, it was permissible for two group companies to advance similar claims for essentially the same damage in different forums.

Background

The claim relates to Victoria Wharf in Cardiff, a waterfront residential development comprising 450 apartments split between seven high-rise buildings. In or around 2005, Taylor Wimpey Developments Ltd (“TWDL”) appointed Taylor Woodrow Construction (“Woodrow”) to design and build the development. Practical completion was achieved between 11 November 2005 and 3 July 2008. Only one contract was found, relating to phase 1 of the works, although it was common ground that the other ‘lost’ contracts were in the same terms, and that all were executed as deeds.

Following the Grenfell Tower fire, fire safety defects were identified in the development.

The Arbitration

On 2 August 2021 – more than 12 years after practical completion of the final phase and prior to the coming into force of the BSA – TWDL served a notice of arbitration on Woodrow, claiming the costs of necessary remedial works. The claim was pleaded in contract, tort and under s.1(1) of the DPA.

In April 2022, Woodrow successfully argued in the arbitration that TWDL’s claims in contract and under the DPA were out of time. That was correct at the time it was decided, although only a few weeks later the law was changed and the BSA extended the limitation period for old claims under s.1 of the DPA from six to 30 years.

TWDL subsequently sought to amend its claim to revive the DPA claim but was unsuccessful because the DPA claim had already been finally determined by the arbitrator. The extended limitation period therefore did not apply pursuant to s.135(6) of the BSA. This is consistent with the Supreme Court decision in URS v BDW [2025] UKSC 21. The tort claim proceeded.

In May 2023, weeks before the final hearing of the tort claim, TWDL produced a 2007 agreement that transferred TWDL’s property development and housebuilding business to Taylor Wimpey UK Limited (“TWUK”). This took effect as an equitable assignment because TWDL had not given Woodrow notice of the assignment at the time.

Ultimately in the arbitration, the arbitrator dismissed the tort claim. The judge commented at [10] that “most fundamentally the claim failed because the arbitrator found that Woodrow did not owe TWDL any concurrent or co-extensive duty of care”.

The Court Proceedings

On 28 October 2025, TWUK issued a court claim; under s.1(1)(b) of the DPA against Woodrow on the basis that TWUK had a relevant interest in the building and sought a Building Liability Order against Vinci Construction Holding Ltd (Woodrow’s ultimate parent company) pursuant to s.130 of the BSA. The court noted that:

“The claim in these proceedings very largely mirrors that pleaded in the arbitration. The core claim is brought pursuant to the DPA and pleads that the same external wall types in the same development were defective. In addition, TWUK pleads a new claim in respect of the steelwork.”

TWDL and TWUK are part of the Taylor Wimpey group and have the same ultimate parent company, and TWDL’s directors are also directors of TWUK.

The Strike Out Arguments

Woodrow argued that TWUK’s court claim was an abuse of process as it sought to relitigate the same claim that was previously determined in arbitration, and that it should be struck out, for two related reasons:

1. It is a second attempt by a connected claimant to relitigate the claim.
2. It is an impermissible “collateral attack” on the arbitrator’s awards.

Rule 3.4(2)(b) of the Civil Procedure Rules 1998 provides that the court may strike out a statement of case if it appears to the court that it is “an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings”. The burden is on the party claiming it is an abuse of process – here, Woodrow.

The courts will not usually let a party bring a case that it could and should have raised earlier, which ensures finality in litigation (which is in the public interest).

The Decision

The judge noted that:

• Each of TWDL, TWUK and others with an interest in the apartments (i.e. the flat owners) had independent causes of action under the DPA.
• The dismissal of TWDL’s claim in the arbitration did not extinguish Woodrow’s potential liability to other interested parties.
• Because TWUK was not a party to the building contract, TWUK had no standing to be joined to the arbitration or to pursue its own arbitral claim. As a result, TWUK could only pursue its separate DPA claim through litigation.

The judge considered whether TWDL and TWUK should be treated as ‘privies’ (entities which share a sufficient degree of identification to make it just to hold that a decision on one is binding on the other). Ultimately, and perhaps surprisingly, given their connectedness, the judge concluded they were not, relying partly on the fact that both had similar but separate interests in claims relating to the defects and remedial works.

The judge dismissed the strike out application and decided that TWUK’s claim was not an abuse of process:

• A party who contravenes s.1 of the DPA is liable not just to the employer but also to those who acquire an interest in the affected dwelling (pursuant to s.1(1)(a) and 1(1)(b) respectively).
• TWDL and TWUK accordingly have their own independent claims.
• TWDL’s claim under the DPA was dismissed on the basis that it was out of time under the Limitation Act and law as it then stood and was not dismissed on its merits.
• Even if TWUK’s claim was struck out, individual leaseholders would have a right to pursue their own claim and there did not seem to be much point in dismissing TWUK’s claim and requiring the leaseholders to pursue their own separate claims against Woodrow.

The judge also found that it was not a collateral attack on the arbitrator’s decision, partly because the arbitrator had made no finding on the merits of the DPA claim, and partly because it was not manifestly unfair for Woodrow to answer TWUK’s claim.

Comments

At first glance, the court’s decision may seem surprising. Where the claimants and subject matter of the claims were so closely related, it may seem an obvious instance of re-litigating the same dispute – and unfair for Woodrow to have to fight the same case twice over.

However, the decision is consistent with the Supreme Court’s view in URS v BDW that s.1 of the Defective Premises Act 1972 creates duties owed to several people at once in respect of the same dwelling, and that s.135 of the BSA is deliberately retrospective and focused on compensation for remedial works. It is also consistent with the policy argument that liability remains with the party who is responsible for the defects – the “polluter pays” principle.

It will be interesting to see whether Woodrow appeals any aspect of the decision, particularly the finding that TWDL and TWUK are not privies. Until then, the decision is a clear reminder that parties who formed part of the supply chain on historic residential projects may have liabilities to, and may face claims from, multiple parties who, historically, may not have had a legal right to claim.  It also demonstrates that the court will seek to enforce the will of Parliament and enable those claims.