BSA update: TCC considers application for a building liability information order for the first time 

The recent case of BDW Trading Limited v Ardmore Construction Limited & Ors [2025] EWHC 434 (TCC) represents the first time the TCC has had to consider the circumstances in which it will grant a building liability information order under s132 of the Building Safety Act 2022 (BSA). 

Background and the law 

Following the Grenfell fire in 2017, new legislation has focused on ensuring that impacted parties are able to hold someone accountable for safety defects identified in the buildings they own or live in. This includes introducing the extended 30-year limitation period for claims under the Defective Premises Act 1972 (DPA), as well as creating a new mechanism under s130 of the BSA which allows courts to look behind the corporate veil to make an order holding an associate of a body corporate responsible for the liability of the other in relation to such claims.  This is referred to as a building liability order (BLO). The explanatory notes of the statute explain that a BLO may be appropriate where a developer company which would otherwise be liable has since dissolved. In such circumstances a BLO may be made against the parent company to maintain accountability and financial liability for building safety defects. 

Lawmakers anticipated that knowing whether to apply for a BLO may not be straightforward, depending on the opacity of the relevant corporate structure. S132 BSA therefore provides for the making of an “information order” as an ancillary mechanism to a BLO. This 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, ostensibly, intended to allow parties to gather necessary information to determine whether to apply for a BLO. The explanatory notes example given for an information order is similar to that for a BLO but highlights that the applicant may apply for an information order against the parent company where it cannot clearly demonstrate that the parent company is an associate of the developer. 

The TCC has now considered and rejected its first information order application, in a decision which clarifies the narrow interpretation of the statute, while giving rise to further questions about when an information order would be granted. 

The facts 

BDW Trading Ltd (BDW) was the developer of five building projects between 1999 and 2005 and engaged Ardmore Construction Limited (ACL) as the main contractor in relation to each. Investigations following the Grenfell fire led to the discovery of various fire safety and structural defects in the developments. BDW accepted its liability to the building owners for remediation costs of the projects. BDW, under the DPA and Civil Liability Contribution Act 1978, sought contributions from ACL as the contractor responsible for the defective works. As previously discussed in an earlier legal update on the disputes between these parties,  ACL’s liability under the DPA for one of the projects was established in adjudication proceedings. Liability for the other four projects was disputed in arbitration proceedings and litigation. 

On review of ACL’s accounts, BDW concluded that ACL could not meet its alleged liabilities in relation to the developments, which were estimated to be circa £85m. It therefore intended to apply for a BLO against various associated companies of ACL. One of the companies, Ardmore Group Holdings Limited (AGHL), denied being an associated company of ACL for these purposes. Notably, AGHL was only incorporated in June 2024, after BDW had informed the other respondents of its intention to apply for a BLO. BDW therefore applied for information orders against ACL, the group companies and AGHL to establish whether it was in fact an associated company of ACL for the purpose of obtaining a BLO. 

The decision 

The information orders against the group companies and AGHL were refused on the basis that the associated companies did not hold the relevant liabilities. Whilst a BLO can be made against an associated company, the wording of s132 is clear that an information order must be made against the company which is subject to the liability, not the associated companies. This meant that the application could be made against ACL as a party to the relevant contract only.  

This directly contradicts the example given in the explanatory notes, as set out above, which states that an information order application can be made against the associated company. The court acknowledged that this may cause confusion, but was clear that case law has established that explanatory notes are guidance only. What matters is a proper interpretation of the statute. Objectively, the decision reflects the proper, strict reading of the statute which clearly states that an application for an information order may be granted against the liable party only.  

The court also refused to grant an information order against ACL directly. For the court to make an order, S132(3) of the BSA requires that the court must be satisfied that the respondent is subject to a relevant liability under s130. BDW made several submissions which it argued demonstrated an apparent liability, including that liability had already been established in relation to one of the developments through adjudication, therefore liability must generally be apparent. Whilst the judge agreed that liability could be established by prior proceedings, as the adjudication award had been paid, he failed to see either how any further liability arose in relation to this project, or how this related to the other projects by default.  

The respondent submitted that s132 required the court to reach a “determination or conclusion … that body corporate ‘is subject to the relevant liability’, not that it might be”. The judge disagreed and considered that a less involved determination of “how things appear to him” was required instead. In undertaking this analysis, the judge determined that whilst “ACL may well have the relevant liability”, it was not apparent that they actually did. This was not sufficient. 

Conclusions 

The decision is helpful in highlighting the high bar parties will need to satisfy to obtain an information order. The distinction between an apparent liability and an actual one is discussed at length in the decision but remains nonetheless ambiguous. The judge commented that “applications under s132 ought (in my view) to be short and uncomplicated, and I do not consider that they impose on the court any obligation to become embroiled in assessments of the merits of disputed matters. If this means that applications for information orders will be made sparingly where liability is in issue, I cannot see why that is a bad thing.”  

Conversely, this appears to impose upon the applicant an onerous obligation in relation to establishing the apparent liability beyond any doubt, prior to applying for an information order. It appears to me that the reason that may be, if not a bad thing, a disappointing or confusing one for some parties, is that it limits the scope and usefulness of s132 in assisting potential claimants to obtain BLOs, while making applying for an information order extremely risky in terms of cost benefit. Those who do not have the resources or information required to establish liability upfront will be precluded from making an information order application and thus may in turn also be precluded from obtaining a BLO. This may be the case even where liability would have ultimately been established further down the line.  

This appears to somewhat contradict the intentions of the lawmakers in drafting s132 as a mechanism to more easily obtain information required to be granted a BLO, and to finally allow affected parties to hold those accountable for dangerous building defects.