HT-2024-000316 - [2025] EWHC 434 (TCC)

The present applications are not for building liability orders under section 130 but for information orders under section 132. The construction and operation of section 130 are, therefore, not themselves matters that fall for determination. However, they are relevant, because section 132 is ancillary to section 130: it is not freestanding but exists to provide a means by which a prospective applicant for a building liability order can obtain information or documents to enable it to make, or consider whether to make, such an application.

Certain features of a building liability order may be noted. First, it concerns a relevant liability “relating to a specified building”: section 130(2). A building liability order cannot make associated companies liable for the entire liability of the original body to the applicant across a number of developments. The court can, of course, make any number of individual building liability orders in respect of the relevant liabilities of one original body, but each such order will be discrete. Second, the precise and in that sense carefully confined definition of “associate” is nevertheless relatively extensive on account of the definition of “the relevant period”.

Third, I can see nothing in section 130 that makes it a precondition to the making of a building liability order that the relevant liability of the original body shall already have been established. Recent decisions of Jefford J illustrate that applications for such orders may be made before the trial of the original body’s liability, that such applications may proceed in tandem with the litigation against the original body, and that it may in a given case be convenient to defer consideration of an application for a building liability order until after the trial against the original body; see Willmott Dixon Construction Ltd v Prater [2024] EWHC 1190 (TCC), 214 ConLR 164; 381 Southwark Park Road RTM Company Limited v Click St. Andrews Limited [2024] EWHC 3179 (TCC). However, I do not read any of the Judge’s observations in those cases, made in specific factual contexts, as meaning that a building liability order cannot be made before the existence of a liability of the original body is established. If they did have such a meaning, I would respectfully be of a different opinion, for the following reasons. (1) There are many simple and obvious ways in which such a condition could have been expressed, but it was not. (2) It is unnecessary to imply such a condition. (3) It makes perfectly good sense to allow a building liability order to function as what might be termed an indemnity (“If this original body has any relevant liability in respect of this specified building, this associate shall also have that liability”). In a given case, it may be very convenient to know in advance that an associate will be liable, if the original body’s liability is subsequently established, so that the associate knows where it stands when it seeks to defend the substantive allegations. (4) The use of the word “any” in section 130(2), rather than merely “a”, suggests that an indemnity is permissible. Especially in view of the definition of “relevant liability”, “a” would have done very well to refer to an established liability. (5) The use of the word “is” (“… specified building is also …”), rather than “shall also be”, is not a significant contraindication, in view of (a) the use of “any”, (b) the fact that a liability may be said to be extant though it is (falsely) disputed and not yet established by judicial determination, and (c) the next reason. (6) Subsection (5) makes clear that a building liability order can be made even if the original body has been dissolved. This clearly envisages that the original body does not have to be restored to the register—if it were restored, mention of its dissolution would be pointless. There is nothing to suggest that the original body must have had liability established against it before its dissolution, and in view of the circumstances in which the Act was passed (the appreciation, after Grenfell, that many buildings had serious but hitherto latent safety issues) and the extended limitation periods provided for in section 135 of the Act (15 or 30 years), section 130 is clearly designed to catch the situation where the original body has passed into history and either could not be restored to the register or, if it were restored, would be a mere empty shell. (7) The example of a building liability order in the Explanatory Notes supports this construction. For reasons mentioned below, any reliance on such an example can only be cautious, because the example of an information order is badly flawed. But in this case the example is consistent both with the wording of section 130 and with good sense. Of course, the construction here advanced does not at all mean that a building liability order cannot be made after liability has been established against the original body, only that it is not available only in such circumstances.

In this context, and with reference to the particular facts of this case, I turn to consider the present applications for orders for information.