The Grenfell Fire and the Building Safety Act 2022 sections 123 & 124 Procedural Opportunities and Challenges for Leaseholders

Zoom link: https://uqz.zoom.us/j/88682832242

As is well documented, the 2017 Grenfell fire resulted in the horrifying deaths of 72 people. Following this tragedy, it became clear that a novel legal process was necessary to provide a means of remedying or removing building defects. The Building Safety Act 2022 (‘BSA’) was enacted giving leaseholders in relevant buildings, the right to apply to the First-Tier Tribunal (‘FTT’) for remedial orders in respect of relevant defects. This paper considers the civil procedures which attend Remediation Orders by which the FTT may require a landlord to remedy a relevant defect within a specified time frame and Remediation Contribution Orders which permit the FTT, if it considers it ‘just and equitable’, to order a landlord or other party to make payments to a specified person for the purposes of meeting costs incurred, or to be incurred, in remedying defects.

Civil procedures are rules which enable courts and tribunals to deal with disputes and enable parties to vindicate their rights. They are the enabling rules which transform our legal substantive rights into enforceable orders and decisions of courts and tribunals. The BSA is designed to respond to a collective harm. Fire safety issues or structural faults may systematically be present throughout a building or may be concentrated in only one part. Either way, the integrity of the whole building depends on the soundness of the parts. For example, the cladding on my balcony may be defective but if a fire erupts there it will potentially impact the whole building. 

This paper considers the civil procedures available to permit leaseholders collectively to enforce their substantive rights under BSA sections 123 and 124. Given that the harm is collective, to what extent do these procedures permit collective enforcement. More crucially, what are the limits of these procedures and how may they be strengthened to assist leaseholders. We argue that representative actions should be considered.

About the Speakers  

Simone Degeling is a Professor of Law at UNSW Law, Australia. She is an expert in private law specialising in equity & trusts, remedies, the law of restitution and unjust enrichment and the intersection of civil procedure and private law doctrine. She is a  Fellow of The Australian Academy of Law, General Editor of the Journal of Equity, a member of the Editorial Board of the Journal of Commonwealth Law and a member of the Academic Committee of the Banking and Financial Services Law Association. She is Co-Director of the UNSW Law Private Law Policy & Research Group, a Fellow of the Australian Centre for Private Law at the University of Queensland  and was previously the Private Law Research Leader of the IMF Bentham Class Actions Initiative at UNSW Law. 

Jodi Gardner is the Brian Coote Chair in Private Law at the University of Auckland. Her research focuses on the relationship between the private law and social policy. She analyses how the private law interacts with social welfare, including the limitations of doctrinal law in responding to the challenges posed by poverty and inequality. Professor Gardner's research has covered topics including inequality in contract law, vulnerability in tort law, high-cost credit agreements, the impact of austerity measures, debt collection contracts, the effect of technological developments on equality and financial exclusion, and concurrent liability in tort and contract.