Limitation periods for construction product manufacturers claims (1)

As part of our Building Safety series of blogs, we discuss the new causes of action against construction product manufacturers in more detail – in particular the new limitation periods that come with it.

The Building Safety Act introduced new statutory causes of action against construction product manufacturers and against cladding product manufacturers when their products are used on dwellings.  These causes of action, however, are not limited to ‘manufacturers’ of products but also to suppliers (if a supplier/marketer of the product makes a misleading statement and such misleading statement is a cause of the building in question being unfit for habitation). 

The distinction between the wider construction product cause of action and the narrower cladding product cause of action is in respect of limitation and retrospectivity – the narrower cause of action only applies retrospectively based on Condition A (e.g. to cladding products manufactured/marketed/supplied before 28 June 2022) whereas the wider cause of action only applies prospectively (e.g. to construction products manufactured/marketed/supplied after 28 June 2022.

As set out in our previous blogs (see Alison Garrett's blog  and Patrick Wisheu's blog) these causes of action are triggered when four conditions are met (Conditions A to D):

“A. The manufacturer (a) fails to comply with a construction product requirement, (b) makes a misleading statement in the marketing of or supply of a construction product or (c) manufactures a construction product that is inherently defective;

B. That construction product is then installed, applied or attached to a dwelling in the course of works to the dwelling building;

C. When the works are completed the dwelling (or if the building contains more than one dwelling, i.e. a block of flats, a dwelling in the building) is unfit for habitation; and

D. The facts which satisfy condition A above were the cause, or one of the causes, of the dwelling being unfit for habitation.”

The Building Safety Act sets out that for both causes of action limitation runs from when the works are completed (Condition B).   There are different limitation periods for the retrospective cladding product manufacturer and prospective construction product manufacturer causes of action:

• Retrospective cladding product cause of action:
  • if Conditions A and B were satisfied (i.e., the cladding product was manufactured/supplied/marketed and the works were completed) before 28 June 2022 then the limitation period is 30 years from the completion of those works (but if that period would expire between 28 June 2022 and 28 June 2023 (e.g. if the works were completed between 28 June 1992 and 28 June 1993) then it is further extended to 28 June 2023;
  • if Condition A was satisfied before (but Condition B was achieved on or after) 28 June 2023 (i.e., the cladding product was manufactured/supplied/marketed before then but the works were not completed until after), then the limitation period is 15 years from the completion of those works.
• Prospective construction product cause of action:  15 years from the completion of construction of the dwelling (or if the construction product was used in repairs/alterations of an existing dwelling, from the completion of such repair/alteration works).

But if you are involved with the supply/marketing/manufacturer of cladding products, whilst describing the cladding product cause of action as retrospective only – that does not mean that the wider prospective cause of action is not relevant to you.  Whilst not all construction products are cladding products, cladding products are likely to fall under the construction products cause of action.

As discussed in more detail in our previous blogs (see Alison Garrett's blog and Patrick Wisheu's blog), these new causes of action require the product in question to be a cause of the dwelling being unfit for habitation.