Court and tribunal establish roadmap for parallel BSA claims

The Technology and Construction Court (TCC) and the First-tier Tribunal (FTT) have handed down a first-of-its-kind joint judgment that provides practical guidance on how Building Safety Act 2022 (BSA) claims that span both courts' jurisdictions should be managed and tried.

The ruling, in Wallace Estates Limited v Durkan Estates Limited [2026] EWHC 2003 (TCC), follows the publication of the fourth edition of the TCC Guide in July, which addresses procedural issues that may arise during BSA claims.

As BSA litigation grows in volume and complexity, the framework established in this judgment will be of direct relevance to landlords, developers, contractors and their advisers who find themselves facing parallel proceedings in both jurisdictions in relation to the same building. 

Those defects were the subject of a remediation order (RO) imposed against Wallace by the FTT under section 123 of the BSA.

Following Wallace's purported termination of the agreement, Wallace commenced FTT proceedings for a remediation contribution order (RCO) under section 124(1) of the BSA, claiming approximately £13.6m against Durkan and its parent, Durkan Holdings Limited.

Durkan subsequently issued TCC proceedings seeking a declaration that the termination was unlawful and damages, while Wallace counterclaimed and raised additional defects not covered by the RO. 

The parties therefore found themselves dealing with two sets of proceedings in different forums:

• the lawfulness of the termination of the agreement in the TCC and
• Wallace's claim for an RCO against Durkan in the FTT.

Both dealt with materially overlapping BSA issues. By the date of the joint case management on 31 July, the parties had agreed in principle that the proceedings should be managed and heard together, as provided for in the TCC Guide.

The court and the FTT nonetheless considered it appropriate to hand down a short judgment as initial guidance on how such proceedings are to be managed going forward.

The TCC proceedings in this case did not fall strictly within the definition of 'TCC BSA proceedings' set out in the revised TCC Guide, which attaches to proceedings for building liability orders and information orders under sections 130 and 132 of the BSA.

However, the court noted that the general principles of joint case management are plainly capable of broader application, and it seems likely that the guide will be updated in due course to capture a wider range of BSA claims.

The judgment sets out the differing rules of both forums and how they may be dealt with in joint case management hearings.

• Court composition: the trial and pre-trial review are to be heard by a TCC judge and an FTT judge, rather than a single judge sitting in both capacities. For procedural efficiency, general case management prior to the pre-trial review may be conducted by a single judge capable of sitting in both forums.
• Disclosure rules: all disclosure should be given in accordance with Practice Direction 57AD, which is the more onerous of the disclosure rules, to avoid the parties having to go through the disclosure process twice under two different requirements. The court and FTT gave the parties express permission to use documents, witness statements and expert reports disclosed in either set of proceedings for the purposes of both. These could not otherwise have been deployed without permission under TCC and FTT rules. 
• Witness statements: to avoid duplication and cost, one set of witness statements should be produced for use in both FTT and TCC proceedings. Those statements should comply with the more formal requirements of Civil Procedure Rules (CPR) part 32 and Practice Direction 57AC. The FTT and TCC provide different mechanisms for compelling witnesses to attend, but the court did not consider it appropriate to address this issue at this stage.
• Expert evidence: as with witness statements, a single set of expert evidence should cover both proceedings. Again, the more prescriptive requirement set out in CPR part 35 applies.
• Costs differences: a key difference between the FTT and TCC is the costs regime of each forum. The FTT is, in general, a no-costs regime and the TCC is governed by the ordinary rule that 'costs follow the event'. In jointly managed and tried cases, parties should utilise separate cost codes to provide for apportionment if required in due course, distinguishing between the work done in relation to the FTT or TCC proceedings, or work done jointly in relation to both.
• Appeals regime: as with costs, the appeals regime differs between the FTT and TCC, and the judges did not consider it the appropriate time – or potentially the forum – to consider the complications that may arise in the future.

While some issues arising from joint management and joint trials remain to be resolved, it is clear that the court will prioritise cost and efficiency savings when consolidating concurrent claims. 

We expect that this and similar cases will be closely followed by landlords, developers, contractors and their advisers to see how joint proceedings play out as concurrent building safety claims progress through the courts.