HT-2022-000311 - [2024] EWHC 3569 (TCC)

It is fair that I should address a number of further points on which I did not ask

Firstly, it was argued on behalf of Click Group Holdings that the amendment ought not to be allowed because there was no expert evidence in relation to the fire safety and structural matters relied upon. That was particularly so in relation to fire safety where the argument was advanced that no fire safety expert had been called. That was a point I addressed in my judgment. It was a thoroughly bad point. Mr Ferguson, the architectural expert, had been called to give that evidence. He did give that evidence and it is recited in my judgment. There were specific points on which it was suggested he had not been fully informed - for example, that sprinklers had been installed - but that was simply wrong. He had been asked about them and given his opinion.

It was also suggested that the second defendant had been deprived of the opportunity to cross-examine specifically on the requirements of the Building Safety Act and whether there was a building safety risk. That was again, in my view, a misconceived argument. There may be cases where there is a live issue as to whether a risk is a building safety risk but, in this case, the nature of the risks was straight forward. The risks were those posed by inadequate fire protection and an insufficient load bearing capacity of beams. Nothing was identified that could have been put, or would have been put, with the benefit of distinct expert evidence, to suggest that those did not pose a risk to safety of people from spread of fire or structural failure, reflecting the definition of a building safety risk.

That point is of some importance because it has been submitted to me in the course of this application that one of the few reasons that might militate against it being just and equitable to make the order would be if the body against whom that order was sought had not had the opportunity to have a fair trial in respect of the making of the order.

In this case, that potential argument does not run because Click Group Holdings participated in the trial and not only had the opportunity to have fair trial but did have a fair trial, and the arguments that were advanced in opposition to the application to amend had no merit for the reasons I have just given.

The second argument advanced in relation to the application for leave to amend, which is also relevant to the application now made, is that it would not be just and equitable to make any order because of the terms in which it was claimed. The submission made was that no party was identified on the face of the pleading against whom that order would be sought. That point had no merit in the circumstances of this case. It was very clear from submissions, and is again recorded in my judgment, that, despite the absence of the naming of any party in the pleadings, a claim would be made against Click Group Holdings.

In any event, the Act does not require a party to be identified in pleadings or joined into proceedings before such an order is made. That is because it may not be apparent that a particular company will be pursued, and which company may be pursued may turn on changeable financial arrangements, or the company against whom the order is sought may not even exist at the time of the original proceedings. Before the order is made, the relevant body corporate must be specified but it does not follow that the associated company must be named or specified in the substantive proceedings. It is fair to say that I have observed in another context that where it is known that an application will be made against a particular party, it is sensible to join them into the ongoing proceedings to ensure that all issues are dealt with, but that does not preclude the seeking of a Building Liability Order against a party not joined.

In this case, none of this arises because Click Group Holdings was a party to the proceedings.

The only other argument advanced was that the claimants have a contractual arrangement with the defendants and a Building Liability Order would allow them to "correct their own failure" - presumably meaning their failure to ensure that any claims could potentially be enforced against both defendants. The individual leaseholders, however, do not have a contractual arrangement with Click Group Holdings but only with Click St Andrews. However, Click Group Holdings guaranteed the performance of Click St Andrews Limited under the Freehold Purchase Agreement and it seems to me that that guarantee militates in favour of Click Group Holdings Limited being liable to the leaseholders for the losses that flowed from the breaches of the Freehold Purchase Agreement which give rise to the relevant liability. The making of that Building Liability Order, albeit it may be of limited value given the financial position of Click Group Holdings, provides the leaseholders with a direct route to claim against Click Group Holdings which they otherwise do not have.