Willmott Dixon Construction Limited v Prater & Ors [2004] EWHC 1190 (TCC) (“Willmott”) is an High Court case that recently provided some judicial insight into the newly created remedy under the Building Safety Act 2022, the Building Liability Order (“BLO”). 

The case is an ongoing multiparty dispute concerning a mixed-use commercial and residential property in Woolwich which has a range of alleged fire safety defects with both the design and construction of the external wall system.

Insight

In general terms, a BLO  is an order providing that any liability (under the Defective Premises Act 1972 or as a result of a building safety risk) relating to a specified building is also a liability of an associated body corporate, or a joint and several liability of two or more associated bodies corporate. The High Court may make a BLO if it considers it just and equitable to do so. 

Willmott provides useful guidance on the procedural considerations of mounting a BLO against associated body corporates. Whilst this novel remedy is still in its infancy, Willmott provides some clarity on the way forward.

In Willmott, the application for a BLO was made by one of the defendants (“the BLO Applicant”) against companies which it claims are associated with the other defendants (“the BLO Respondents”). The BLO Respondents had asked for the BLO application to be stayed, pending a decision in the main claim (which sought to establish liability of the defendants, including the BLO  Applicant) . They argued that, as their liability would be wholly dependent on the Court first finding liability on the part of the BLO Applicant in that main claim, the circumstances in which a BLO might be made might never arise. 

Mrs Justice Jefford DBE found, amongst other things:

• As a matter of principle, the legislation does not require a party against whom a BLO is sought to be made a party to the main claim which seeks to establish the liability of the original party. 
• Notwithstanding this, if a BLO is contemplated prior to the commencement of the main claim then it would generally be efficient to make both claims together. 
• In particular, it seems that an associated company will not be able to challenge a finding re the liability of the original entity. But it may still be open to the associated company to argue that the circumstances in which that liability was established mean it is not just an equitable to make a BLO. Those arguments will be avoided if the associated company is party to proceedings.

In essence, it is likely the case that a BLO will not need to be run at the same time as the main claim, notwithstanding the efficiencies described by the Judge. That said, it may well be in the best interests of those applying for a BLO to ensure that it is.