Vista Tower – The Upper Tribunal Upholds A Wide Construction Of Section 124 Of The Building Safety Act 2022 -Article by Mark Warwick KC

INTRODUCTION

1. On 27 January 2026 the President of the Upper Tribunal (Lands Chamber), namely Mr Justice Edwin Johnson, dismissed all the appeals brought by the 75 Appellants against remediation contribution orders relating to Vista Tower, Stevenage.  Each order was in the sum of £13,262,119 and each order was also made on a joint and several basis.  The consequences are that any of the 75 companies might find itself being required to pay over £13 million. This article summarises the decision and the approach that the Upper Tribunal has said is to be adopted, when an application or applications are made for remediation contribution orders.
   
   BACKGROUND
   
   
2. In the early 1960s a tall office building was constructed in Stevenage.  In July 2014 Edgewater (Stevenage) Limited (“R1”) bought the building.  It then carried out a redevelopment, turning the offices into a block of 73 flats.  The block was known as Vista Tower.  The flats were all sold on long leases.  In June 2018 R1 sold the freehold reversion to Grey GR Limited Partnership (“Grey”), to be held as an asset of a pension fund. In the aftermath of the Grenfell Fire it became necessary for Grey to carry out substantial remediation works to Vista Tower, costing over £13 million.  Grey sought to recover the cost of the works.  Anticipating that R1, the developer, would have limited funds, Grey applied for contributions towards the remedial work from another 95 companies, pursuant to Section 124 of the Building Safety Act 2022 (“the Act”).  By Section 124(3) a body corporate can be required to make payments if it is a person “associated” with the developer.  By Section 124(3) “a body corporate is associated with another body corporate if (a) at any time in the relevant period a person was a director of both of them”.  At least one of the directors of R1 was also a director of another 95 companies.  Grey therefore joined all the 95 extra companies, as well as R1. 
   
   
3. It was common ground that the extra 95 companies were “associated” with R1 through directorship.  However there remained one key hurdle to be overcome before a remediation contribution order could be made.  This hurdle arose because of the wording at Section 124(1) stipulating that: 
   
   
4. “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”.
   
   
5. After preliminary steps a two-week hearing took place before a First Tier Tribunal.  A central issue was whether it was just and equitable to make any or all of the 95 associated companies liable, and if so to what extent.  The First Tier Tribunal made remediation contribution orders against 75 companies.  Paragraph 360 of the FTT decision said: 
   
   
   “we consider that whether (loosely, as in the explanatory notes to the Act) called a group, or wider corporate structure, or something else, almost all of the remaining Respondents have links in addition to association by, common directorship…”.
   
   
6. Each order was made on a joint and several basis, and each was for the total cost of remedial work namely over £13.2 million.  All 75 companies appealed.  The principal grounds of appeal were concerned with the scope of Section 124(1), and particularly whether it would be just and equitable to make a remediation contribution order.
   
   
   THE UPPER TRIBUNAL DECISION
   
   
7. The Upper Tribunal decided “that the FTT does have the power to make a remediation contribution order against multiple respondents on a joint and several basis” – [167].
   
   
8. Moving on to just and equitable itself, the Upper Tribunal said “There has to be something more before the FTT can be satisfied that it is just and equitable to make the remediation contribution order against each of the relevant respondents” – [179].
   
   
9. Whilst recognising that “there has to be something more”, at [180], the Upper Tribunal expressly refrained from giving any guidance as to whether, in any particular case, it was just and equitable to make an order.  Although the Upper Tribunal therefore gave no substantive guidance, it did give limited procedural guidance.  At [182] it was stated that “in any such application the FTT is likely to require ….. statements of case from the parties, with the applicant going first”.
   
   
10. The Upper Tribunal emphasised, at [226] that “consideration of the just and equitable question is a very fact sensitive exercise” and it was not open to the Upper Tribunal to interfere with the FTT’s findings, see [222].
    
    
    LESSONS FROM THE DECISION
    
    
11. Since just and equitable is “very fact sensitive” any Respondent should press for detailed particulars of the Applicant’s case and then carefully assemble evidence to endeavour to meet that case.  The scope of Section 124 is very wide, and it will be very difficult to challenge a remediation contribution order if one is made.
    
    
12. As Lewison LJ famously said, at paragraph 114 in Fage UK Limited v Chobani UK Limited (2014) EWCA Civ 5 “The trial is not a dress rehearsal, it is the first and last night of the show”.
    
    

Mark Warwick KC was instructed by Bude Nathan Iwanier in the above case.

To read the judgment, please click here.

To learn more about Mark’s practice, please click here.