Building Safety Act: TCC ruling on “relevant liability” precedes the first Building Liability Order

In December, Mrs Justice Jefford handed down judgment in 381 Southwark Park Road RTM Company Ltd & Ors v Click St Andrews Ltd & Anor [2024] EWHC 3179 (TCC) which included some notable pointers on the use of section 130 of the Building Safety Act 2022.
To recap, section 130 provides that where it is just and equitable to do so, the High Court may make an order that a relevant liability of a body corporate shall also be a liability of an associated body corporate (a building liability order, or BLO). A relevant liability means liability incurred under the Defective Premises Act 1972, under section 38 of the Building Act 1984 (if it is ever enacted(!)), or as a result of a risk to the safety of people in or about the building arising from the spread of fire or structural failure.
The case is understood to be the Technology and Construction Court’s first decision on whether alleged wrong doing is a relevant liability, and the decision was as would be expected: in light of expert evidence, Jefford J was satisfied that in carrying out the works, the first defendant was in breach of the relevant terms of the relevant agreement in respect of fire safety and structure, which gave rise to a relevant liability under section 130.
However, this case’s particular interest comes from Jefford J’s pronouncements on procedure and on the scope of “relevant liability”.
Procedure
At paragraph 31, Jefford J confirmed that, while it seemed “sensible and efficient” for the claimant to make a claim under section 130 within existing main proceedings, it is not necessary for the claimant to do so. Rather, a claimant is free to make a claim for a BLO against an associated company after the proceedings in which the relevant liability is established. Jefford J noted in explanation that it would be “surprising” if a BLO had to be claimed within existing proceedings, since (a) the circumstances in which it might be just and equitable to make the BLO may not arise until after proceedings to establish the relevant liability are concluded and (b) a BLO can be sought against a corporate body that did not even exist at the time of such proceedings.
Scope of “relevant liability”
At paragraph 219, Jefford J set out her view that it was correct to characterise a failure to comply with design standards concerned with structural safety as a relevant liability, notwithstanding that the risk caused by that failure had not yet manifested itself, may not ever manifest itself, and was capable of being addressed. She noted that, indeed, such is the “nature of risk” and was of the view that such risk “is what the ‘relevant liability’ is concerned with”. It is presumed that this would also be the case with fire safety risks.
First Building Liability Order
We understand that a Building Liability Order has now been made in this case: the first one to be made under the Building Safety Act 2022. We will report further once we have obtained a copy of the transcript.
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