Two lengthy Court of Appeal judgments were given last week on 8 July 2025, providing authority on issues arising from the ‘leaseholder protections’ under Part 5 and Schedule 8 of the Building Safety Act 2022 (BSA 2022). 

This blog focuses on a key aspect of those decisions, which is just how far some of the provisions have a retrospective effect.

In particular:

1) Can costs incurred/charged prior to 28 June 2022 be recovered under paragraph 9(1) of Schedule 8? The same principle would also apply under other paragraphs of Schedule 8 by the same reasoning: paragraphs 2 (where the developer or its associate is responsible for the defects), 3 (where the contribution condition is met), 4 (lower value leases) and 8 (for cladding remediation).

Paragraph 9(1) states:

“No service charge is payable under a qualifying lease in respect of legal or other professional services relating to the liability (or potential liability) of any person incurred as a result of a relevant defect.”; and

2) Can costs incurred/charged prior to 28 June 2022 be recovered through a remediation contribution order under section 124 of the BSA 2022? 

Section 124 states:

“(1) The First-tier Tribunal may, on the application of an interested person, make a remediation contribution order in relation to a relevant building if it considers it just and equitable to do so.

(2) “Remediation contribution order”, in relation to a relevant building, means an order requiring a specified body corporate or partnership to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying, or otherwise in connection with, relevant defects (or specified relevant defects) relating to the relevant building.”

The same judges sat in the Court of Appeal to hear the two cases, due to the relationship between the issues, although separate judgments in each case were given.

In Hippersley Point (see below for case reference), one of the grounds of appeal concerned the first issue above.  By a majority (two to one), the Court held that paragraph 9(1) of Schedule 8 meant that, from 28 June 2022, no service charge is payable under a qualifying lease in respect of legal or other professional services relating to the liability (or potential liability) of any person incurred as a result of a relevant defect whether such services have been provided and billed for, or any service charge demanded or fallen due, before or after 28 June 2022.

(A dissenting judgment was given arguing for an interpretation that, from 28 June 2022, no service charge is payable under a qualifying lease in respect of legal or other professional services relating to the liability (or potential liability) of any person incurred as a result of a relevant defect where the liability to pay for the legal or other professional services was incurred on or after 28 June 2022.)

The Triathlon appeal (see below for case reference) concerned the second issue above. Unanimously, the Court agreed that a remediation contribution order could be made in respect of costs incurred before section 124 of the BSA 2022 came into force on 28 June 2022. 

Taken together, these judgments reveal a coherent scheme whereby:

• From 28 June 2022, when these parts of the BSA 2022 came into force, no service charge in respect of those matters set out in paragraphs 2, 3, 4, 8 and 9 will be payable. This is regardless of whether, before that date, costs have already been incurred by the landlord /managing agent, or service charges have already been demanded from the leaseholder or fallen due, but
• Service charges already paid by a leaseholder in respect of those matters set out in paragraphs 2, 3, 4, 8 and 9 could potentially be recovered from the landlord/managing agent by seeking a remediation contribution order. While the scope of such an order could stretch back as far as 30 years before the BSA 2022 was enacted, this would be subject to the ‘just and equitable’ test set out in section 124(1) in all the circumstances.

In each case, the judgments referred to the important judgment in the recent Supreme Court case of URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21, although the decision was not directly relevant to, and hence binding in, these two cases. Among other things, in the Supreme Court case, it was confirmed that section 135 of the BSA 2022 applies retrospectively to claims that are dependent on the Defective Premises Act 1972, including claims in negligence and for contribution. 

The reasoning in the two cases explored the retrospectivity of the legislation in detail, taking into account past precedent (case law) in relation to the construction of the legislation. It also considered the wider purpose and scheme of Part 5 and Schedule 8, in the context of the Grenfell fire tragedy and the Government’s legislative response in the BSA 2022. This includes the ability of landlords/managing agents to pursue claims against those ultimately responsible for fire safety and structural safety defects, including through:

• The extended 30-year limitation period for claims under the Defective Premises Act 1972;
• New causes of action in relation to dangerous construction products; 
• Building liability orders, which can cut through the ‘corporate veil’ to reach those with sufficient means who benefited from the original development, extending liability for building safety defects to a developer's associated companies; and
• Remediation contribution orders, which are also open to landlords/managing agents to apply, and which also reach through the ‘corporate veil’ to attach liability to those who are ‘associated with’ the developer, subject to the ‘just and equitable’ test in all the circumstances.

Given the significance of the points, it may be that an appeal to the Supreme Court is possible, particularly on the first point, given the dissenting judgment. But for now, the two Court of Appeal cases bring welcome clarity to this important question regarding costs that were charged to leaseholders prior to the BSA 2022 coming into force, building that bigger picture to see high- and medium-rise buildings ultimately made safe for residents. 

Housing providers should review costs charged in respect of relevant buildings (those over 11 metres or 5 storeys) in case they contradict these decisions.

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Hippersley Point - Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point (Secretary of State for Housing Communities & Local Government, intervening), [2025] EWCA Civ 856

Triathlon  - Triathlon Homes LLP v Stratford Village Development Partnership and other companies (Secretary of State for Housing Communities and Local Government, intervening), [2025] EWCA Civ 846