Trading Limited v Ardmore Construction Limited & Ors

An information order under section 132 of the Building Safety Act 2022 is ancillary to a possible building liability order. It may be sought before the underlying liability has been established, but the court must form the view that the relevant body corporate is subject to a relevant liability. A merely arguable, possible or potential liability is insufficient.

The application must relate to a relevant liability concerning a specified building. The court is not required to conduct a trial or an early merits assessment. Orders must be confined to information or documents genuinely required to enable an application for a building liability order to be made or considered. Statutory limits cannot be bypassed through section 37 of the Senior Courts Act 1981 or the inherent jurisdiction.

BDW Trading Limited sought information orders against Ardmore Construction Limited and three companies in its corporate group. The applications were made under section 132 of the Building Safety Act 2022, alternatively under section 37(1) of the Senior Courts Act 1981 and the inherent jurisdiction.

BDW had undertaken remedial works at five developments and alleged that Ardmore Construction Limited was liable under the Defective Premises Act 1972 and the Civil Liability Contribution Act 1978. One liability had been established and paid; the remaining claims were disputed, with some subject to arbitration and others to litigation.

The issues were whether an information order could be made against associated companies, what section 132(3)(a) required where liability had not previously been established, whether the requested information was appropriate, and whether the alternative jurisdictions could provide wider relief.

1. The applications were refused. An information order under section 132 was available only against the body corporate subject to the relevant liability. It could not be made against companies that were merely associates of that body. Section 132(2) concerned information relating to associates, while section 132(3)(a) identified the body corporate against which the order could be made.
2. Section 132(3)(a) did not require a relevant liability to have already been established by judgment, arbitration award, adjudication decision or admission. However, the court had to form the view that the body corporate actually was subject to a relevant liability. It was not enough that liability was reasonably arguable or might later be established. The court was forming a view for the application and was not determining liability.
3. Section 132 was ancillary to section 130. An applicant had to satisfy the liability condition in relation to a relevant liability concerning the specified building for which a building liability order was contemplated. It was insufficient to show only that one of several unidentified claims might succeed.
4. Applications under section 132 should be short and uncomplicated. They were not vehicles for trying building disputes or conducting early neutral evaluation. Trial procedures, including examination of lay or expert witnesses and detailed merits assessments, were inappropriate.
5. The Crown Heights liability had been discharged and therefore did not provide an existing relevant liability. The potential liability for appeal costs was doubtful as a relevant liability and, in any event, did not justify an information order. In relation to the other developments, the evidence showed only that Ardmore Construction Limited might have a relevant liability.
6. The requested corporate, financial and commercially sensitive material was in any event excessive or outside the statutory scope. The alternative reliance on section 37(1) and the inherent jurisdiction could not be used to evade the limits Parliament had placed on section 132.