BDW -v- Ardmore: a cautious judicial approach

Introduction

The recent High Court decision in BDW Trading Ltd -v- Ardmore Construction Ltd marks the first judicial consideration of the circumstances in which an information order may be granted under section 132 of the Building Safety Act 2022 ('BSA'). The judgment offers valuable clarity on how the courts are likely to approach information orders and building liability orders ('BLOs'), emphasising that these measures are not intended to provide claimants with a shortcut to establishing underlying liability and that information orders will not be easily granted. It also suggests that courts will take a cautious approach should parties seek commercially sensitive information.

Background: the BSA and the Part 5 toolkit

In the wake of the Grenfell tragedy, the BSA introduced a wide‑ranging regime to improve building safety and to create legal avenues for parties (including building owners, landlords, homeowners, and leaseholders) to recover the cost of remediating defective buildings.

Part 5 (sections 116–160) provides a 'toolkit' designed to strengthen accountability and enable claims arising from defective work or unsafe construction products. Sections 130-132 specifically deal with BLOs and Building Information Orders, which was the focus of the BDW -v- Ardmore judgment.

Building liability orders and information orders

BLOs were introduced to prevent developers from avoiding responsibility for safety defects by using subsidiaries, SPVs or asset‑light entities. Once a development is complete, such companies are often dissolved or rendered dormant, leaving no meaningful recourse for claimants.

To address this, the High Court has discretion to extend liability to 'associated companies' on a joint and several basis.

The key requirements for a BLO are:

1. Associated company

   A BLO can only be made against an 'associated' company, and includes parents or siblings of the primarily liable company 'at any time' since the commencement of the works.
    

2. Relevant liability

   The order must relate to a 'relevant liability', meaning liability arising under:

   • the Defective Premises Act 1972;

   • section 38 of the Building Act 1984; or

   • any claim involving a 'building safety risk'.
      

3. Just and equitable

   The Court must consider whether it is 'just and equitable' to impose liability on an associated company.

The aim is to ensure that the original developer funds remediation work but the intentionally open criteria makes this an incredibly powerful and potentially far-reaching tool, of which all parties connected to residential developments should be aware.

Related to this, the High Court may also make an Information Order. Information orders have been introduced to enable a party to determine the corporate structure in circumstances where a claimant is unsure or unaware of whom the building liability order should be made against. If granted, the order requires a specified company to provide specific information or documents about persons who are, or have been during a specified period, associated with that company.

An information order can only be made if the Court believes:

1. the company is subject to a 'relevant liability'; and

2. it is appropriate to require the information or documents to enable the applicant to make, or consider whether to make, an application for a BLO.

Given the nature of UK construction projects and property development, these orders are an extremely useful tool to claimants (and other parties), especially when dealing with historic corporate structures and dispositions. However, BDW -v- Ardmore indicates that the threshold for obtaining such orders is far higher than anticipated.

BDW -v- Ardmore – the application

BDW sought information orders against Ardmore and several associated companies in relation to five developments completed between 1999 and 2005. The information sought included details of the companies’ corporate structure, financial resources and contractual relationships, which BDW argued were relevant to potential BLO applications.

The High Court refused the applications, holding that the statutory criteria were not met - particularly the requirement that Ardmore be 'subject to' a relevant liability.

Why the Court refused the application

The Court’s reasoning for refusing the application included as follows:

1. No established relevant liability

   For four developments, liability had not been determined because proceedings were ongoing. For the fifth, an adjudication award had been discharged by payment, meaning no liability remained. Therefore, Ardmore was not currently subject to a relevant liability.

    

2. The statutory test cannot be softened

   The court rejected BDW’s interpretation that a company that might have a relevant liability should suffice. The statutory wording requires that the company is subject to such liability - not that proceedings are underway or that liability is anticipated.

    

3. Information orders can only target the primary liable company

   On a strict reading of the Act, the court concluded it had no jurisdiction to issue an information order against an associated company. This contradicts the explanatory notes to the BSA, but the judge held that the court must follow the statutory language.

    

4. Requested information was disproportionate

   BDW sought extensive, highly sensitive information about Ardmore and its group. The court held that:

   1. much of it was not necessary to consider a BLO;

   2. some was publicly available (e.g. via Companies House);

   3. other material was outside Ardmore’s control; and

   4. the scope of an information order should be narrow.

       

5. Timing considerations

   The judge commented that the timing of BDW’s applications was premature given the unresolved liability position.

Significance and practical implications

This decision represents the first major judicial examination of how the courts will apply the BSA’s building safety 'toolkit', and it suggests that information orders will be available in far fewer situations (and for a narrower range of information) than many had expected. Although the legislation and its explanatory notes adopt intentionally broad language, the court in BDW -v- Ardmore took a strict and cautious approach.

Crucially, the judgment confirms that an information order can only be made in circumstances where the company is already subject to a relevant liability. A mere possibility of liability, ongoing proceedings, or an unresolved dispute is not sufficient. Claimants therefore need to establish, rather than simply infer, the existence of a relevant liability before seeking disclosure. The court also emphasised that it will not allow information orders to become fishing expeditions for group-wide financial or operational data, particularly where the information is commercially sensitive or falls outside the target company’s control.

This narrower interpretation significantly curtails the anticipated scope of information orders and may restrict how claimants use them to interrogate complex corporate structures. At the same time, the broader BLO and BIO landscape under the BSA remains unsettled and continues to evolve. Future cases will likely bring further judicial clarification and, potentially, a more consistent approach.

While BLOs may still prove to be powerful tools in the right circumstances, this judgment underscores that courts will intervene in corporate structures or compel disclosure only where there is a solid evidential foundation. For now, claimants should adopt a strategic and evidence‑led approach when considering whether and when to seek BLOs or information orders.

The decision highlights that careful litigation planning is essential, especially given the likelihood of further judicial development and clarification as more cases come before the courts.

Should you require further guidance on the implications of this case or assistance navigating the BSA regime, please do not hesitate to contact the Hill Dickinson Construction team or get in touch with the author.