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

For reasons given above, BDW’s primary contention, which rests on the example in the Explanatory Notes, fails.

As for Crown Heights, the liability in the adjudication award and the subsequent judgment has been discharged by payment in full; I do not see how ACL can be said to be subject to that liability now.

The alternative argument concerning Crown Heights rests on the order of Coulson LJ dated 11 February 2025: “Permission to appeal is granted on condition that Ardmore pay the costs of the appeal, including the costs incurred by BDW, such costs to be assessed on the standard basis if they cannot be agreed.” A question might arise as to whether that creates an existing liability, especially if ACL has not decided to pursue an appeal on the stipulated condition. However, I shall assume that there is an existing costs liability. Even so, I would not consider it as providing any basis on which to make an information order. First, I doubt whether the liability is a “relevant liability” as defined in section 130(3) of the 2022 Act. It is a costs liability in respect of Joanna Smith J’s conclusion that the adjudicator, who had jurisdiction to deal with disputes arising “under the contract”, thereby had jurisdiction to deal with the claim under the Defective Premises Act 1972. It is not clear to me that this costs liability can be said to be “incurred under the Defective Premises Act 1972 … or as a result of a building safety risk.” Second, even if the costs liability would suffice to ground the court’s jurisdiction to make an information order, I should not consider it sufficient to justify making such an order. Sections 130 to 132 are concerned with enabling the identification of bodies corporate to whom liability for serious building defects can be passed, not with costs protection. (The Court of Appeal has the power to order an appellant to give security for costs in an appropriate case: CPR r. 25.15.)

As regards the other four developments, BDW’s argument was that it was likely that ACL had a relevant liability in respect of at least one development if not more, in the light of several pieces of evidence. First, a relevant liability was established in respect of the Crown Heights development. Second, the claim in respect of each of the other four developments is supported by expert technical and legal opinion. Third, the latest company accounts for each of ACL, R2 and R3 include very substantial provision for liabilities for remedial works on previous projects. The respondents have refused to specify which projects this provision relates to; they have not asserted that it does not relate to any of the four developments in question. Fourth, in the Crown Heights adjudication proceedings ACL denied that it was seeking to evade responsibility for issues for which it was culpable and stated that it “ha[d] spent or [was] spending over £80m of its own funding to remediate buildings with fire safety defects.” Fifth, ACL has refused BDW’s request to agree to putting before the court the technical experts’ joint statements in the Explorers Court arbitration; it is said that an adverse inference ought to be drawn from that refusal.

Mr Brannigan submitted that this argument of BDW could not succeed, because the building liability order must relate to a relevant liability relating to a specific building; thus the attempt to satisfy section 132(3)(a) by contending that it was likely that at least one indeterminate claim would succeed did not reflect the statutory provisions. In my judgment, there is force in this submission, at least in a modified form. The requirement to identify a relevant liability “relating to a specified building” concerns the definition and therefore the nature and scope of a building liability order. But “relevant liability” is itself not defined by reference to a specified building but by reference to the nature of the thing that gives rise to the liability. Therefore one could, strictly, conclude that a respondent was probably subject to a relevant liability even if one could not actually say which of several buildings such a liability, or liabilities, related to. However, the very purpose of the information order is to facilitate an application for (or consideration whether to make an application for) a building liability order, and such an order would have to do with a relevant liability “relating to a specified building”. I conclude that either as a matter of construction or, at least, as a matter of appropriateness, the applicant for an information order must satisfy the condition in section 132(3)(a) in respect of a relevant liability relating to the specified building in respect of which it is considering making an application for a building liability order. This would dispose of the present applications.

Anyway, the most I am prepared to say on the basis of the information before me is that it appears to me that ACL may well have a relevant liability to BDW. But it does not appear to me that it actually has such a liability. I specifically reject the submission that an adverse inference ought to be drawn against ACL because of its refusal to have selected arbitration documents introduced in evidence, because I think that a party to arbitration proceedings is entitled to stand on the confidentiality of the arbitration process.

For these reasons, the condition in section 132(3)(a) is not satisfied. This means that I cannot make an information order.