Stop Press – Significant and Substantial new TCC Guidance on Building Liability Orders and Section 132 Information Orders

In a Judgment delivered today in the case of BDW -v- Ardmore Limited the TCC (His Honour Judge Keyser KC) has given very significant new guidance on both (1) when a Building Liability Order can be made and (2) When a Section 132 Information Order will be made – and the significant limits on such an Order.

In particular the Court has ruled that:

(a)        Section 130 Building Liability Orders can be sought and obtained on an “indemnifying” basis – i.e. before and without establishing the relevant liability of the original body corporate;

(b)        In Order for a Court to grant an “Information” order under Section 132(a) it is not sufficient for an applicant to show that it has received advice that it is entitled to make a Building Safety related claim against a party and/or to adduce evidence that such a claim may well be available to it;

(c)        The example set out in the formal approved explanatory notes to the Building Safety Act which might suggest to the contrary is wrong and contrary to the wording of the Act;

(d)       Rather, the Court can only grant such an application if it forms the view that the Respondent to the Application is in fact currently liable to the Applicant in relation to a Building Safety related claim relating to the specified building in respect of which it is considering making an application for a building liability order.

(e)        The practical consequences of that are that:

(i)         “Applications under section 132 ought… to be short and uncomplicated”;

(ii)        They do not “impose on the court any obligation to become embroiled in assessments of the merits of disputed matters”; and

(iii)       That might mean “that applications for information orders will be made sparingly in cases where liability is in issue”.

(f)        Moreover, where such Information Orders are made, they will be of narrow – and perhaps very narrow –  compass:

(i)         They can be made only against the Body Corporate who has the liability, not against any actual or potential associates of that Body Corporate;

(ii)        They can order that information be provided only in respect of associates of the Body Corporate, not the Body Corporate itself;

(iii)       Where that Body Corporate does not have the information or the power to obtain it, it will not be ordered to disclose it; and

(iv)       Whilst the information can include information as to both corporate structure and financial matters, the Court will be careful to order only that information which is needed by the Applicant to either consider whether to apply for, or to make, an application for a BLO.

The net result was that the Applicant’s application for a Section 132 Information Order,  seeking 17 different categories of detailed information, was dismissed in total, and on multiple grounds.

Sean Brannigan KC and Thomas Crangle of 4 Pump Court (both of which had acted for the successful Respondent in the case of Wilmott Dixon -v- Prater) acted for the successful Respondent, instructed by Gurbinder Grewal of Mantle law.

A copy of the Judgment is here: HT-2024-000316 Judgment

Written by Jennie Gillies.

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Sean Brannigan KC

Call 1994 King's Counsel 2009

Jennie Gillies, FCiArb

Call 2000

Thomas Crangle

Call 2002

Related practice areas

Construction & Engineering