Testing the limits of liability

As reported by Property Week, a contractor has been found liable for 20-year-old construction defects in a landmark legal case that confirms the wide scope of adjudication clauses in building safety disputes. 

Partner and Head of Construction, Sarah Rock comments in Property Week on the case of BDW Trading Vs Admore Construction that was heard at the Technology and Construction Court (TCC) in December: “In this landmark case for the construction industry, Ardmore made the argument that adjudication is 'a procedure which was primarily designed for the resolution of live or recent disputes' as opposed to disputes relating to matters some 20 years ago. This decision has the resultant effect that disputes relating to matters as far back as 1992 may now be subject to the quick and dirty adjudication procedure. It wouldn’t be an understatement to suggest this ruling could drastically change the course of future disputes in the sector.

Adjudication is usually a four-week process and originally was seen to be a solution to deal with relatively straightforward claims on an urgent basis. The decision makes it clear that this is not seen as the case anymore and size and complexity are no barrier to adjudication. Now time can be included in that list.

Opening up adjudication as a means of dispute resolution to the growing pile of building safety claims making their way through the courts will inevitably ease the pressure mounting on the court system. A happy, and perhaps unintended, consequence of this recent judgment.

Whilst Ardmore argued deliberate concealment of documents by BDW, the court disagreed and criticised Ardmore's own 'deficient' record keeping. This is a call to arms for contractors, consultants and developers responsible for relevant buildings dating back to 1992 to urgently review their document retention policies. Given the retrospective nature of the extension from six years liability to 30 under the Defective Premises Act, which came into force through the Building Safety Act, it is hard not to have sympathy with poor record keeping from the 1990s and early 2000s. Once the six or often 12 years of liability had concluded it does not seem unreasonable to have disposed of documents.”

Read the full article in Property Week here.