Further details on building information orders and building liability orders under the Building Safety Act 2022 (BSA) have become apparent in a recent ruling on alleged building safety defects and "relevant liability"
As reported by Construction News, a housebuilder has been denied access to details of the assets of a contractor’s sister companies amidst a case on alleged building safety defects. It follows an ongoing claim by BDW Trading Ltd (BDW), part of Barrat Developments, against design and build contractor Ardmore Construction Ltd (ACL). Worth £85 million, the claim alleges building safety issues at five residential developments that were completed between 1999 and 2005: Crown Heights in Basingstoke, Explorer Court in Plymouth, Pierhead Lock in the Isle of Dogs, Galleria in Peckham, and Citiscape in Croydon.
Parties can apply for building information orders under Section 132 of the Building Safety Act 2022 (BSA) for specified information or documents. This information can give power to the High Court to issue a building liability order (Section 130 of the BSA) that extends “relevant liability” to “associated” companies. Such liability orders force accountability from sister or parent companies even if they were not part of the initial legal proceedings. It can be upheld if the original company involved in the dispute is defunct or unable to pay.
As previously reported by the FPA, an adjudication decision regarding legacy fire safety issues was upheld by a High Court judge for the Crown Heights development in Basingstoke. The £14.5 million dispute was brought before the Technology and Construction Court (TCC), with the judge ruling in BDW’s favour. The remaining claims, valued at around £70 million, are either pending arbitration or are in the early stages of litigation.
As BCLP LLP explains, BDW stated that ACL “does not have the financial reserves to satisfy such liabilities” and was looking to apply for a building liability order against other companies it believed were associated with ACL. Prior to doing so, the developer applied to the High Court for information orders against ACL and three other companies: Ardmore Construction Group Ltd, Ardmore Group Ltd, and Ardmore Group Holdings Ltd.
According to Mantle Law, the information order sought “a wide ranging list of commercially sensitive documents ranging from cash flow forecasts, management accounts, details of provisions, through to asset registers and group security arrangements relating to both ACL and entities that BDW said were associated with ACL”.
On 27 February 2025, His Honour Judge Keyser KC ruled that “an order for information can only be made against a corporate body that ‘is subject to a relevant liability’”. He added: “ACL alone was party to the underlying building contracts and ACL alone could have a relevant liability.”
BCLP LLP added that the judge also highlighted the explanatory notes to the BSA “were wrong in that they envisaged an information order against associates”.
The judge stated: “This conclusion is contrary to the example of information orders given in the Explanatory Notes to the 2022 Act. The example shows an information order being made not against the ‘original body’ (here, putatively, ACL) but against the company believed to be an associate (here, each of R2-4). That is, in my judgment, impossible to square with the wording of section 132. The corporate body required to give the information (section 132(2)) is the corporate body subject to the relevant liability (section 132(3)(a)), not an associate of that corporate body.”
Regarding whether ACL was “subject to relevant liability”, the judge stated that it was not enough for BDW to show that ACL “might have” or was “in the frame” for a relevant liability. The judge also stated that the prior adjudication case regarding Crown Heights was not sufficient to establish a relevant liability as that liability had been discharged and, therefore, was not “an existing liability”. Regarding the Explorer Court and Pierhead Lock developments, the judge noted:
“These two developments are subject of ongoing and confidential arbitration proceedings, in respect of which no award has been issued. Therefore no relevant liability has been established. Further, in view of the existence of the arbitration agreement it would not be open to the court to make any determinations as to the existence of such a liability.”
Similarly, no relevant liability had yet been established for the two other developments in question, Galleria and Citiscape.
The judge concluded: “In these circumstances, with the exception of Crown Heights, where there was but is not now a relevant liability, each of the projects involves only contested and unresolved claims in which no relevant liability has been established. As BDW does not seek to establish the existence of such liability on this application—for example, by factual and expert evidence on the substantive issues of liability—the condition in section 132(3)(a) is not satisfied.”
Discussing the implications of the ruling, Keith Kilburn, Louise Shiels, and Nathan Rodgers of Brodies LLP said: “This decision means that any parties considering applying for an Information Order in anything other than the most straightforward case will likely face a high bar, with any information and documents the Court is likely to consider appropriate to order is likely to be construed narrowly.
“This potentially means that future applications for Information Orders are likely to be made sparingly. If the underlying liability is contested by the body corporate, an applicant may find it difficult to demonstrate a relevant liability. Alternative options available would be to: (i) await the outcome of the underlying claim, or; (ii) if sufficient information is available to identify the target, proceed directly to a BLO instead. This is a developing area and we will continue to provide updates as to the court's approach to the BSA.”
The full judgement can be found here.