Building Safety Defect Disputes Overseas – The Road to Recognition and Enforcement in the EU

The Building Liability Order ("BLO") regime is one of the most significant parts of the Building Safety Act 2022 (the "BSA"). It enables liability for building safety defects to be extended to parent and holding companies of the party involved in the works. A key question becoming even more important further to recent UK case law, is the extent to which BLOs can be enforced overseas.  

What is the Hague Convention?

The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 (the "Convention") applies to UK judgments given in proceedings commenced on or after 1 July 2025. It establishes a framework under which parties can enforce judgments overseas (so long as the state where enforcement is sought is also a member of the Convention). Members of the Convention currently include the UK and EU member states (excluding Denmark).

Could a BLO be enforced pursuant to the Convention?

A judgment is eligible for recognition and enforcement so long as one of a number of the requirements listed in the Convention is satisfied. This can include where the defendant to the enforcement proceedings maintained a branch in the state of origin and the claim on which the judgment is based arose out of the activities of the branch.

There are a number of grounds as to when recognition or enforcement may be refused. This includes when it is considered to be manifestly incompatible with the public policy of the enforcing state. This will be a matter for the court where enforcement is sought, however the BLO regime has a number of elements to it which are particularly novel, which includes piercing the corporate veil and a 30 year retrospective limitation period extension. These make compelling arguments as to why the regime may be considered to be incompatible with public policy.  

Conclusion

The Convention has the potential to become a useful tool in the BLO landscape. Particularly considering the number of UK construction companies with parents and holding companies based overseas. Some key questions for claimants:

• Is the defendant's state a party to the Convention?  
• Has at least one of the requirements listed in the Convention been met?
• Do any of the exclusions apply?

As noted above, the biggest challenge may be the public policy exclusion, which will undoubtedly necessitate input from lawyers based in the enforcing state. The road to recognition and enforcement pursuant to the Convention is unlikely to be straightforward, but it offers an opportunity for claimants to recover costs in circumstances where UK entities are no longer trading or lack sufficient funds to meet a judgment, but companies within its group based in the EU are still trading.