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

The Preamble to the 2022 Act describes it as follows:

“An Act to make provision about the safety of people in or about buildings and the standard of buildings, to amend the Architects Act 1997, and to amend provisions about complaints made to a housing ombudsman.”

Section 1 of the 2022 Act provides in part:

“(1)

This Act has 6 Parts, and contains provisions intended to secure the safety of people in or about buildings and to improve the standards of buildings.

…

(6)

Part 5 contains further provisions, including—

(a)

provisions about remediation and redress; …”

Part 5 of the 2022 Act comprises sections 116 to 160. The provisions about remediation and redress are in sections 116 to 135. There are specific provisions about remediation in sections 116 to 125. I have been referred in particular to sections 123 and 124, which confer on the First-tier Tribunal power to make remediation orders and remediation contribution orders respectively, but I do not think it necessary to make further reference to those provisions or to dicta of the First-tier Tribunal concerning their breadth and operation (Footnote: ²). The present case concerns the provisions dealing with building liability orders, which are sections 130 to 132. They provide in relevant part as follows.

“130.

Building liability orders

(1)

The High Court may make a building liability order if it considers it just and equitable to do so.

(2)

A ‘building liability order’ is an order providing that any relevant liability (or any relevant liability of a specified description) of a body corporate (‘the original body’) relating to a specified building is also—

(a)

a liability of a specified body corporate, or

(b)

a joint and several liability of two or more specified bodies corporate.

(3)

In this section ‘relevant liability’ means a liability (whether arising before or after commencement) that is incurred—

(a)

under the Defective Premises Act 1972 or section 38 of the Building Act 1984, or

(b)

as a result of a building safety risk.

(4)

A body corporate may be specified only if it is, or has at any time in the relevant period been, associated with the original body.

(5)

A building liability order—

(a)

may be made in respect of a liability of a body corporate that has been dissolved (including where dissolution occurred before commencement);

(b)

continues to have effect even if the body corporate is dissolved after the making of the order.

(6)

In this section—

‘associate’: see section 131;

‘building safety risk’, in relation to a building, means a risk to the safety of people in or about the building arising from the spread of fire or structural failure;

‘commencement’ means the time this section comes into force [28 June 2022];

‘the relevant period’ means the period—

(a)

beginning with the beginning of the carrying out of the works in relation to which the relevant liability was incurred, and

(b)

ending with the making of the order;

‘specified’ means specified in the building liability order.

131.

Building liability orders: associates

(1)

For the purposes of section 130, a body corporate (A) is associated with another body corporate (B) if—

(a)

one of them controls the other, or

(b)

a third body corporate controls both of them.

Subsections (2) to (4) set out the cases in which a body corporate is regarded as controlling another body corporate.

(2)

A body corporate (X) controls a company (Y) if X possesses or is entitled to acquire—

(a)

at least half of the issued share capital of Y,

(b)

such rights as would entitle X to exercise at least half of the votes exercisable in general meetings of Y,

(c)

such part of the issued share capital of Y as would entitle X to at least half of the amount distributed, if the whole of the income of Y were in fact distributed among the shareholders, or

(d)

such rights as would, in the event of the winding up of Y or in any other circumstances, entitle it to receive at least half of the assets of Y which would then be available for distribution among the shareholders.

…

(4)

A body corporate (X) controls another body corporate (Y) if X has the power, directly or indirectly, to secure that the affairs of Y are conducted in accordance with X’s wishes.

…

(6)

In determining under any of subsections (2) to (4) whether one body corporate (X) controls another, X is treated as possessing—

(a)

any rights and powers possessed by a person as nominee for it, and

(b)

any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph). …

132.

Order for information in connection with building liability order

(1)

A person of a prescribed description may apply to the High Court for an information order.

(2)

An ‘information order’ is an order requiring a specified body corporate to give, by a specified time, specified information or documents relating to persons who are, or have at any time in a specified period been, associated with the body corporate.

(3)

An information order may be made only if it appears to the court—

(a)

that the body corporate is subject to a relevant liability (within the meaning of section 130), and

(b)

that it is appropriate to require the information or documents to be provided for the purpose of enabling the applicant (or the applicant and others) to make, or consider whether to make, an application for a building liability order.

(4)

In this section—

‘associate’: section 131 applies for the purposes of this section as it applies for the purposes of section 130;

‘building liability order’: see section 130;

‘prescribed’ means prescribed by regulations made by the Secretary of State;

‘specified’ means specified in the information order.”

It is convenient at this point to refer to two examples of the operation of these provisions given in the Explanatory Notes to the 2022 Act. First, the example given for building liability orders:

“A 14 storey residential building is developed by a body corporate A. A few years after it is completed later, it is discovered that there are serious fire compartmentation issues within the building and the local fire and rescue authority order the building to be evacuated until the risk from fire is reduced. To seek recompense for the remediation costs, the freeholder speaks to lawyers about whether they can make a civil claim. The lawyers advise the freeholder that they can make a claim under the Defective Premises Act as the building is unfit for habitation.

The freeholder discovers the development company was dissolved once the building was completed and the freehold sold off. The freeholder’s lawyers advise that they can establish that the development company’s parent company is associated, as the parent company directly controlled the actions of the development company.

The freeholder applies to the High Court for a building liability order to be applied to the parent company. The freeholder must show that the parent company is associated with the development company. The High Court must consider whether it is just and equitable to grant the building liability order, for example whether the parent company can receive a fair trial.

In this example, the request for a building liability order is granted. The freeholder can now make a claim under the Defective Premises Act against the parent company. The court proceedings would then proceed as normal.”

Then, the example given for information orders:

“A 14 storey residential building is developed by body corporate A. A few years after it is completed, it is discovered that there are serious fire compartmentation issues within the building and the local fire and rescue authority orders the building to be evacuated until the risk from fire is reduced. To seek recompense for the remediation costs, a leaseholder within the building speaks to lawyers about whether they can make a civil claim. The lawyers advise the leaseholder that they can make a claim under the Defective Premises Act as the building is unfit for habitation.

The leaseholder discovers the development company was dissolved once the building was completed and the freehold sold off. The leaseholder suspects that the development company’s parent company is associated, therefore, they wish to be able to apply for a building liability order in order to seek damages from the parent company. However, the leaseholder is unable to show that the parent company is associated to the degree needed to be granted a building liability order.

The leaseholder applies to the High Court for an information order to be applied to the parent company. The leaseholder must show that they intend to seek damages under a relevant liability (in this instance the Defective Premises Act) and that the information order could support them in applying for a building liability order.

In this example, the request for an information order is granted. The High Court places an information order on the parent company, and they are then required to share with the leaseholder details of all companies which were associated with them during a time period specified by the courts. The leaseholder now has the information required to show that the parent company is associated with the development company, as the parent company directly controlled the actions of the development company.

The leaseholder is then able to apply for a building liability order, to support them in making a claim under the Defective Premises Act against the parent company.”