Willmott Dixon Construction Limited v Prater & Ors

A claim for a Building Liability Order need not be heard with the underlying claim. However, where such an order is contemplated, it will generally be sensible and efficient for the associated company to be joined and for both claims to proceed together.

This enables the associated company to address whether the liability is a relevant liability and whether it is just and equitable to make the order. Findings in the underlying claim may not determine those issues, particularly where they are not necessary to the main judgment. A stay should therefore be refused where it risks a later hearing involving duplicated evidence, submissions and factual findings. Appropriate case management can limit the associated company’s participation and address costs.

The claimant brought a substantial claim arising from alleged fire-safety defects in the external wall construction of a mixed-use development. Aecom, the fourth defendant, made an additional claim against Lindner Prater Ltd and three German companies for a Building Liability Order under section 130 of the Building Safety Act 2022.

The German companies applied for the additional claim to be stayed until judgment in the main claim, arguing that the order was contingent on findings of liability and contribution which might never arise. Lindner Prater supported the application. The central issue was whether a stay would promote efficient case management or instead risk leaving relevant issues unresolved until a later hearing.

1. Application refused. The additional claim was directed to proceed with the main claim, with the intention that both would be heard at the same time.
2. Section 130 of the Building Safety Act 2022 does not require a company against which a Building Liability Order is sought to be a party to the main proceedings. The company may not exist, or the circumstances giving rise to the application may not yet be contemplated.
3. Nevertheless, joinder and concurrent determination will generally be sensible and efficient. The associated company may accept findings concerning the original company’s liability but still need to address whether that liability is a relevant liability and whether it is just and equitable to make a Building Liability Order.
4. A stay could leave those issues unresolved. The main judgment might determine liability on grounds which do not require findings about building safety risk, responsibility, culpability or the statutory meaning of relevant liability. A later hearing could therefore require further evidence or renewed factual determinations.
5. The burden of participation could be controlled by case management. The applicants could limit their evidence, cross-examination and submissions to matters relevant to the proposed order. Any appropriate costs consequences could be addressed later.
6. A case management conference was likely to be required to address disclosure, witness evidence, participation at trial and the timetable for defences.