Building safety: The Technology and Construction Court issues a new (fourth) edition of its guide

The fourth edition of the Technology and Construction Court Guide (the Guide) has just been published.

Introduction

There are a number of changes, but some of the key ones relates to building safety.

This is in large part due to the Building Safety Act 2022 (BSA) which introduced four new types of order, two of which, Remediation Orders (ROs) and Remediation Contribution Orders (RCOs), are dealt with by the First-tier Tribunal (FTT). The other two, Information Orders (IOs) and Building Liability Orders (BLOs), are dealt with by the High Court (remember they cannot be dealt with by the County Court) – Technology and Construction Court (TCC).

By way of a brief resume:

Remediation Order

An RO is an order requiring a landlord to remedy certain fire or structural defects or take certain steps to prevent or reduce risk from fire or structural defects, which most often arise as a result of works undertaken in the 30 years ending on 28 June 2022, in a self-contained building over 11 metres or five storeys high and which contains two or more dwellings (see section 123 of the BSA for more detail).

Remediation Contribution Order

An RCO is an order requiring a company or partnership who is the landlord (or was the landlord as at 14 February 2022), or was the developer, or is "associated" with any one of them to make payment towards the costs of remedying, preventing or reducing the risk of fire or structural defects that arose in the 30 years ending on 28 June 2022 in a self-contained building over 11 metres or five storeys high and which contains two or more dwellings. A RCO can only be made if it is just and equitable to do so (see section 124 of the BSA for more detail).

Information Order

An IO is an order requiring a body corporate to give information or documents relating to persons who are or have been associated with it. It can only be sought against the principal defendant in court proceedings – see BDW Trading Ltd v Ardmore Construction Ltd & Ors [2025] EWHC 434 (TCC) (27 February 2025) (see section 132 of the BSA for more detail).

The Guide clarifies the position on the use of IOs. Before making an application for an IO, it will be expected that the party seeking the information has identified the information it is seeking and asked the other side for that information in writing before making an application. The party from whom the information is sought is expected to respond to a written request within 14 calendar days and to provide the information within 28 calendar days (unless it has made reasonable objection). If that does not happen then proceedings can be issued and the Guide makes it clear that there is no need to comply with the pre-action protocol for construction and engineering disputes before issuing proceedings seeking such an IO.

Building Liability Order

A BLO is an order providing that a certain liability (under one of the Defective Premises Act 1972, section 38 of the Building Act 1984 (this section is not yet in force or a building safety risk – broadly a risk of fire or structural failure) of a body corporate is also to be treated as the liability of another body corporate if they are treated as having being associated with each other at any point from the carrying out of the works to the making of the order. An order can only be made if it is just and equitable to do so (see section 130 of the BSA for further detail).  

In the Guide, ROs and RCOs are known collectively as “FTT BSA proceedings”. IOs and BLOs are known collectively as “TCC BSA Proceedings”.

Appendix L Building Safety Act questionnaire 

Where claim forms or application notices are issued in the TCC in respect of either an IO or a BLO, they must now be accompanied by:

1. A completed questionnaire which can be found at Appendix L (the very last appendix) to the Guide. Appendix L asks for:

• Details of the claimant/applicant.
• The address of the building to which the proceedings relate.
• The sections of the BSA to which the proceedings relate.
• Whether any other proceedings have been commenced or are contemplated in either the FTT or the TCC in relation to the same building, where the claimant or the applicant is also a party.
• If there are other proceedings, set out the court or tribunal of those other proceedings, including the case number of those other proceedings, the date other proceedings were commenced and the relevant section of the Building Safety Act that applies, the capacity of the claimant/applicant in such proceedings, the date of any direction hearings which has taken, or is scheduled to take, place and any date for a final hearing/trial which has been listed.

2. Proposals for case management of proceedings where more than one set of proceedings is likely. 

All TCC BSA proceedings are to be referred to the Judge in Charge of the TCC (or any judge to whom the Judge in Charge delegates) for their urgent attention. It will then be decided if there should be an initial CMC, which is described as an “Allocation CMC” for the building.

Allocation CMC

If there is to be an Allocation CMC hearing, then it will usually be limited to an hour and be held:

• Within 28 days of TCC BSA proceedings being commenced.
• On Teams. 

If an Allocation CMC is to take place, then it is the responsibility of the claimant/applicant in the TCC BSA proceedings to give notice of the CMC to all parties in both the TCC BSA and any related FTT proceedings. All parties are expected to cooperate with each other and they must lodge written submissions no later than 4pm, two working days before the Allocation CMC if they want to make oral submissions. 

At the Allocation CMC, the judge will decide if any FTT and TCC proceedings should be dealt with at the same time and by the same judge, and can direct that a TCC judge sits as judge of the FTT and deals with both sets of proceedings.

Bear in mind that this Allocation CMC does not replace the standard case management. It is in addition to it; not a replacement for it.

Conclusion

Building safety is an emerging area of law, and this is a revolutionary approach to dealing with proceedings in different courts/tribunals. It will be interesting to see how it works in practice.

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