Case Law Updates - August 2022

• Published date: 05 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Barton Legal
• Author: Mr Bill Barton

Balfour Beatty Regional Construction Ltd v Broadway Malyan Ltd [2022] EWHC 2022 (TCC) (29 July 2022)

Application for early specific disclosure

This was an application before Mrs Justice Jefford, for early specific disclosure from the Defendant; Broadway Malyan Limited ('BM').

Background

The dispute concerned a 6 storey complex, including student accommodation and commercial units, in London. BM was appointed as architect by the original developer (JG Colts LLP) on or around 29 February 2008. The Property was owned by Hive Bethnal Green Limited ('HBGL')

The original developer of Hive was JG Colts, who entered into a JCT Design and Build Contract (2005 ed) with Mansell Construction Services Ltd and appointed BM as architects. BM's appointment included obligations to design, co-ordinate design of, and inspect the works. There were a number of sub-contractors, sub-designer and sub-consultants.

BM's appointment was novated to Mansell (the Claimant) and Mansell was acquired by Balfour Beatty ('BB'). HBGL issued a claim form against BB in June 2021.

HBGL alleged defects in the design and construction of the Hive and specifically in the cladding, ventilation, windows and roofing, and the claim is for approximately '12 million.

By a letter dated 23 November 2021, BB passed on some or all of those allegations by HBGL to BM. BB's solicitors asked for the file BM held in respect of BB including 'all work products such as drawings, designs, specifications, the original appointment of your client (signed version), site inspections records (relating to the façade and related works), the fire strategy report/ equivalent, and the letter issued to JG Colts/ the employer on final inspection of the works.' BM made the point that it was for BB to investigate the claims against them, that BM had very little detail of the alleged defects, and that they had no duty to disclose documents at this very early stage.

BB stated their entitlement to the documents was:

1. On the basis of a relationship of principal and agent,
2. On the basis that the client file was BB's property,
3. Under "Paragraphs 5.2 and 5.3 of the RIBA Code of Conduct on the subject of record keeping",
4. On the basis of an entitlement to internal documents produced for BB's benefit (relying on Gibbon v Pease [1905] 1 KB 810); and
5. Because they were entitled to pre-action disclosure

BM responded that the relevant information would be disclosed if found. At this point there was a standstill agreement between the parties.

Judgement

The judge dismissed BB's application based on contractual and/or proprietary right to the documents on the grounds that this was a claim for a final remedy which was premature.

It was agreed that common ground for disclosure was under the provision of PD 51U. BB submitted that the application for early disclosure fell within PD 51U.6A.2, however the judge was not convinced by this argument.

The judge noted that the only express provision for 'specific disclosure' is in PD 51U.18.1, which can only come after an order for Specific disclosure. The judge considered principles identified by Coulson J in Bullring Limited Partnership v Laing O' Rourke Midlands Limited [2016] EWHC 3092 (TCC)...