The first case on Information Orders in connection with Building Liability Orders: BDW Trading Limited v. Ardmore Construction Limited & Ors

In the wake of the Government’s Grenfell Tower Inquiry and the surge in building safety claims, the case of BDW Trading Limited v. Ardmore Construction Limited & Ors [2025] EWHC 434 (TCC) was heard by the Technology and Construction Court (TCC) and marks a key point for industry stakeholders considering making applications for Building Liability Orders (BLOs) and Information Orders (BLIOs) under sections 130 and 132 of the Building Safety Act 2022 (BSA) respectively. The court examined the interplay between these sections for a balanced understanding of section 132.

By way of a reminder:

• For companies and limited liability partnerships (LLPs), there is the fundamental principle that every company or LLP is its own legal entity that takes responsibility for its own liabilities and debts.  A BLO is a statutory remedy introduced by the Building Safety Act 2022 (BSA) allowing the courts to pierce that corporate veil to hold an associated body corporate e.g. a company or LLP responsible for the liability of another under:
• the Defective Premises Act 1972 (DPA),
• section 38 of the Building Act 1984 (as yet not in force at the time of this case), or
• as a result of building safety defects. 

The last two grounds allow BLOs to be applied for in relation to building works involving commercial premises, not just residential.

Of the changes introduced by the BSA, one notable change has been to retrospectively increase the limitation period for bringing claims under the provisions of the DPA from 6 years to 30 years for those claims which accrued prior to 28 June 2022.  Consequently, this change has far-reaching ramifications for the industry.

• A BLIO is an order which can be applied for in the TCC which requires 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.  It is a way of identifying associates and gathering necessary information to determine whether to apply for a BLO against an associated body corporate.

Background

In this case, BDW submitted two BLIO applications: the first against Ardmore Construction Limited (ACL) and the second against Ardmore Construction Group Limited (R2), Ardmore Group Limited (R3) and Ardmore Group Holdings Limited (R4). 

BDW, a developer responsible for five house building projects completed between 1999 and 2005, had contracted with ACL as the design and build contractor on each project. Following the Grenfell Tower tragedy in June 2017, fire safety and structural defects had been identified in these developments, for which BDW had accepted responsibility to the building owners and apartment owners and agreed to cover remediation costs. Consequently, BDW notified ACL of these claims. ACL’s liability was established in adjudication proceedings for one of the developments. However, ACL disputed liability for the remaining four developments leading to arbitration proceedings for two of the developments and early-stage litigation for the other two.

BDW concluded that ACL lacked sufficient financial reserves to meet its alleged liabilities, based on its latest publicly available accounts. Consequently, BDW sought a BLO under section 130 of the BSA against associated entities. It was evident that ACL, R2 and R3 had connections as subsidiaries, with R4 being the ultimate parent company. While R2 and R3 acknowledged their association with ACL, R4 contested this.

BDW therefore sought information regarding whether R4 was an associate of ACL, whether other entities (including entities incorporated in the British Virgin Islands or in the Republic of Ireland) are associates with ACL, and recent information on all four respondents.

Decision

In reaching a decision in this case, the Court addressed the application for BLIOs in three legs:

Who can the information order be made against?

The relevant body corporate against whom a BLIO is brought should be the one which is subject to the relevant liability and not an associate of that corporate body. In this case, ACL as the party to the original building contracts.  Consequently, the second application for BLIOs against R2-R4 was refused.

Is there a relevant liability?

When applying for an BLIO, the condition that "it appears to the court … that the body corporate is subject to a relevant liability" must be satisfied.  Whilst it is not a requirement that the relevant liability has already been established, it is not enough for the applicant to have received advice that it is entitled to make a relevant claim against a party i.e. that they are ‘ín the frame’ for the relevant liability.  

For active building disputes, the applicant should be putting its evidence before the Court and inviting an assessment (albeit non-binding) on the merits but that this should not stretch to the examination of lay and expert witnesses by the Court.  In this case, whilst the Court felt that, on the basis of the information before it, it appeared to the Court "that ACL may well have a relevant liability to BDW", it did not appear to the Court "that it actually has such a liability".

What information can be ordered to be disclosed?

Since the primary purpose of a BLIO is to assist a party in gathering necessary information to determine whether to apply for a BLO against an associated body corporate, the information requested must meet the condition of appropriateness.

For commercially sensitive information not required either for the purpose of identifying associates or to enable the applicant to form a view as to the financial viability of associates, information already publicity available (e.g. on Companies House) or which relates to details of the corporate structure which is already clear and simple, the Court is unlikely to grant a BLIO even if the information is within the respondent’s control.

What isn’t clear from the decision is whether the applicant needs to have a reasonable belief that the respondent has the information requested.  For the present, there is the possibility that applicants may use BLIOs for the nuisance factor where applicants do not have the requested information.  

Using the three-legged approach, the Court rejected BDW’s applications for BLIOs, finding that BDW had not satisfied the condition that it was apparent to the Court that ACL was subject to a relevant liability and also determining that the information sought in the applications was not appropriate.

Commentary on BLOs

The Court also took the opportunity to provide some commentary on the process of applying for BLOs.  

It stipulated that it would be necessary to apply for separate BLOs for each project, based upon the reference to a relevant liability "relating to a specified building" in section 130(2) of the BSA.

Referencing the decision in Willmott Dixon Construction Ltd v. Prater [2024] EWHC 1190 (TCC) where the BLO application was to proceed in tandem with the litigation against the original body, here the Court highlighted that there is no pre-condition in Section 130 that the relevant liability of the original body shall already have been established before the Court can make a BLO, thereby paving the way for parties to obtain BLOs ahead of the determination of the original body’s liability, effectively granting them on an indemnifying basis.

Conclusion

This case has provided valuable guidance in this emerging area of law; particularly in relation to BLIOs.  

For BLOs, while the choice of obtaining them ahead of establishing the liability of the original body will be a key tactical consideration, a decision to do so it is not without some possible downsides such as:

• The potential cost implications of pursuing a BLO before the relevant liability is determined if BLOs are made against a large number of entities and each participate in the main proceedings; and
• What happens if the original body corporate’s group undergoes structural changes after a BLO is made, potentially forcing the applicant to later make additional applications against more financially stable associates.

Considering this, it might be worth waiting until the main claim is determined before pursuing the BLO. However, it will be interesting to see how the courts and future applicants approach similar cases in the future.