Commercial Disputes Weekly – Issue 2463 June 2025

BUILDING SAFETY ACT
The Supreme Court has clarified the scope of liability for contractors, developers and other construction professionals and the retrospective application of limitation periods under the Building Safety Act 2022 (“BSA”). Although no claims had been made against it post-Grenfell, BDW carried out remedial works for structural design defects in two high-rise developments that it had previously owned and that URS had designed. It sought to recover the costs of such work from URS. The court rejected URS’s challenge to the claim that the costs were not recoverable in negligence as they were voluntarily incurred. Given the safety risks and the potential liability for injury, BDW’s actions could not be said to be truly voluntary. The court held further that contractors could be liable for contribution even where no formal claim had been made against the party seeking contribution, as well as confirming that the extended limitation periods under the BSA applied retrospectively to claims under section 1 of the Defective Premises Act 1972 (“DPA”) and contribution claims under the Civil Liability (Contribution) Act 1978. It rejected a final argument that a developer such as BDW could not be owed a duty under the DPA.
URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21, 21 May 2025

MARITIME – COLLISION
The Admiralty Court has apportioned liability 80:20 between two bulk carriers KIVELI and AFINA I that collided off the south coast of Greece. The KIVELI was more at fault due to breaches of the Collision Regulations (the International Regulations for Preventing Collisions at Sea 1972) by its Chief Officer, including inadequate navigation, failing to keep a proper look out and turning to port when the vessel should have turned to starboard. There was a debate as to whether it was a head-on situation or a crossing situation, but in either event, the KIVELI should have turned to starboard or maintained her course ahead. Had she not turned to port, there would have been no collision. KIVELI’s bow hit the port side of AFINA I, causing immediate flooding and risk of sinking. The court held that AFINA I should have turned to starboard earlier and thereby reduced the risk of collision but the breaches by her crew were far less serious, hence the lower percentage of liability.
Monford Management Ltd, Owners of The Kiveli v Afina Navigation Ltd, Owners of The Afina I [2025] EWHC 1185 (Admlty), 16 May 2025

LANDLORD AND TENANT
The Court of Appeal has dismissed an appeal against a decision of the Upper Tribunal (Lands Chamber) not to amend restrictive covenants in a long lease. The covenants enabled the lessor (which was also the planning authority) to prevent a proposed development from going ahead in an uncontrolled manner. Great Jackson wished to redevelop the land in the lease by demolishing warehouses and building two multi storey residential towers. The lessor refused consent to the development and so Great Jackson applied to the Upper Tribunal to modify the covenants. The application was refused on the basis that the covenants gave the lessor practical benefits to ensure that the developments would be carried out in a timely fashion (for the purposes of the Law of Property Act 1925, section 84(1A)).
Great Jackson ST Estates Ltd v Manchester City Council [2025] EWCA Civ 652, 19 May 2025

JURISDICTION
The Commercial Court has dismissed an application for a stay of English proceedings in favour of proceedings in the German Regional Court in Halle. The dispute arose in relation to a claim in debt and damages under a guarantee given by Gravity Fitness Limited (“GFL”) to Nova Leipzig Sarl (“Nova”) for the obligations of its subsidiary under a lease of a unit in a shopping centre in Germany owned by Nova. The lease and guarantee were governed by German law, but there was no jurisdiction clause in the guarantee. Both GFL and its subsidiary were English companies, Nova was a Luxembourg company. Nova commenced proceedings in England and GFL sought a declaration in the German courts. It also challenged the English proceedings on the basis that Germany was the more appropriate forum. The court held that GFL had not discharged its burden of showing that Germany was clearly the more appropriate forum than England. Significant connecting factors with England included the incorporation of the defendants and the fact that their defence would be coordinated by English employees of the defendants (as would Nova’s claim). Although the contract was governed by German law, the issues were straightforward and the English courts are experienced in dealing with foreign law questions. All witness were based in England and would give evidence in English.
Nova Leipzig Sarl v Gravity Fitness Ltd [2025] EWHC 1262 (Comm), 22 May 2025