A judge has told Balfour Beatty that it cannot force an architect to pick through reams of documents to see if any of them have a bearing on a £12m cladding-defects dispute.
Mrs Justice Jefford ruled in the Technology and Construction Court that the contractor could not require architect Broadway Malyan to search for the documents when it only had a limited idea of what it was looking for.
A “lack of ready access” to the records was also identified by the judge, with documents being held in 15 boxes and others stored on now-obsolete software.
The case arose over the Hive, a six-storey building in Bethnal Green, east London, which was completed in 2009. It comprises student accommodation and commercial units.
Mansell Construction Services, which later became Balfour Beatty Regional Construction, built the Hive for developer Hive Bethnal Green, with Broadway Malyan as architect.
In June 2021, the developer issued a claim against Balfour Beatty, alleging defects in design and construction, specifically regarding the cladding, ventilation, windows, cavity barriers and roofing.
Balfour Beatty then asked Broadway Malyan for “all work products such as drawings, designs, specifications” plus the original appointment letter, site inspection records, fire-strategy report and the final inspection of the works.
Mrs Justice Jefford noted: “That was on any view a far-reaching request for documents.”
Broadway Malyan replied that Balfour Beatty should have the documents anyway, as the design-and-build contractor, and that it had no duty to disclose documents at such an early stage in the legal proceedings.
The judge said Balfour Beatty’s claims about having difficulty defending itself against the developer without the documents were “overstated”.
She said a letter sent to Broadway Malyan by Balfour Beatty’s solicitor was “in the most general terms”, and offered no explanation “for why the expert instructed by Balfour Beatty is unable to provide further particulars of the respects in which the rain-screen cladding panels were improperly fixed, or what cavity barriers were referred to, what their proposed application was and how they were unsuitable.
“These are all matters that could be expanded upon by observation and the application of expertise without the need for any design documents or inspection reports.”
Refusing to make the order against Broadway Malyan, the judge said Balfour Beatty wanted to place on the architect “the burden of searching for, finding and identifying the relevant documents”, with little information on what it was supposed to seek.
In June, a judge ruled against Balfour Beatty’s attempt to dismiss from court a cost claim made against it for cladding remediation on a residential scheme in Dorset.
