Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 117
result of the de昀椀ciencies in URS’s structural design,
which were not known prior to the inspections.56
The defect allegations relate to the structural slabs
being overstressed.57 The parties accepted that for
the purposes of the Preliminary Issues hearing, it
was assumed that the defendant (URS) breached its
duty of care.58
of these reasons would be due to the 20 year passage
of time.61
On the second question, regarding the breach
of natural justice in relation to the provision of
documents to Ardmore, the Judge referred to the
correspondence between the parties and found that
it does not support this proposition. The Judge cited
that in Ardmore’s pre-adjudication correspondence,
Ardmore had requested extensive disclosure from
BDW. BDW had provided various documents and
reports to Ardmore. During the adjudication,
Ardmore identi昀椀ed categories of disclosure, which
the Adjudicator directed BDW to comply with.
When BDW provided the documents, Ardmore
did not complain about any omissions in any of
the disclosures. Ardmore requested additional
documents in its Rebutter, and these were also
provided by BDW.62
The Court Decides on Reasonableness of
Historic Document Disclosure
In the case of the parties having di昀케culties 昀椀nding
relevant documents, the Court is likely to consider
whether parties have taken “proper” 59 steps to gather
the relevant information and documentation.
In BDW v Ardmore, the Judge considered two
related questions: (i) what the reason for Ardmore’s
inability is to access relevant documents, and (ii)
given Ardmore’s lack of documents, were the broad
requirements of natural justice satis昀椀ed during the
adjudication process in relation to the provision
of disclosure by BDW. On the 昀椀rst question, the
Judge’s view was that Ardmore’s record keeping over
the relevant period was de昀椀cient, and particular
reference was made to the witness statements.
The Judge rejected the suggestion that because of
the adjudication process, Ardmore had received
only selected documents from BDW. Based on the
evidence, the Judge found that BDW had carried
out reasonable and proportionate searches and
disclosed the relevant documents to Ardmore.63
Ardmore’s witness stated that Ardmore’s record
keeping on recent projects is robust, but this was not
the case for projects completed around the time of
the BDW development. The witness did refer to the
fact that “until recently, there has been no reason for those
operating in the construction industry to retain documents
for longer than required for usual limitation periods (i.e.
15 years).” 60 The Judge stated that in essence the
witness evidence is that Ardmore has been unable
to 昀椀nd pertinent documents. The Judge inferred
that Ardmore’s lack of documentation was not due
to document disposal after any relevant period had
expired.
Retrospective E昀昀ect of s.135 of the BSA
2022 Clari昀椀ed in URS v BDW [2025]
UKSC Decision
In URS v BDW (2025), the retrospective e昀昀ect of the
provisions in the BSA 2022 was clari昀椀ed. It is not
disputed that s.135 BSA applies to a claim brought
under s.1 of the DPA. The issue is whether the
retrospective e昀昀ect of s.135 BSA also applies to other
claims which are dependent on the time limit under
the DPA but are not actually claims under the DPA.64
In this case, an action is brought by BDW against
URS claiming damages for repair costs in the tort of
negligence and for contribution.
The Judge then considered where BDW’s witness
stated that there was every reason for Ardmore to
retain documents in the circumstances because,
by the time that this dispute was raised in July
2022, there had been two previous disputes about
Ardmore’s works. In 2007 when Ardmore carried out
remedial works to address water leaks and in 2015
when BDW arbitrated against Ardmore regarding
balcony defects, which settled in February 2017,
and Ardmore carried out remedial works to the
balconies. In 2019, BDW began asking Ardmore for
documents relating to the cladding materials. These
previous events should have alerted Ardmore to the
importance of retaining its documents for a longer
period.
The Supreme Court held that s.135(3) of the BSA
does apply to claims which are dependent on s.1
DPA. Section 135(3) of the BSA refers to “an action by
virtue of” s.1 of the DPA and it is not limited to actions
“under” s.1 of the DPA.
The Supreme Court held that the “central purpose
of the BSA in general, and section 135 in particular,
was to hold those responsible for building safety defects
accountable.” 65
If s.135(3) of the BSA were restricted to actions
under s.1 DPA then this purpose would be seriously
undermined. The consequence would be that the
30-year limitation period would apply to claims
brought by homeowners against a developer under
the DPA. But it would limit any ‘onward’ claims
brought by the developer against the contractor
Regarding the insu昀케cient information going into
the adjudication due to Ardmore’s poor record
keeping or Admore’s decision not to carry out any
detailed investigations, the Judge found that neither
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