Balfour Beatty v Broadway Malyan: the challenge of retrieving historic information

Image: 166641312 © Sayan Moongklang |
Balfour Beatty’s failed legal attempt to compel Broadway Malyan to retrieve documents relating to a building completed 13 years ago highlights the issues not only that information management can address in construction, but also the challenges around its retrospective application to the existing built environment.

The matter concerns the six-storey Hive building in London’s Bethnal Green. Mansell Construction won the contract to build the Hive in 2008, six years prior to the contractor being taken over by Balfour Beatty. Broadway Malyan won the role of architect and its appointment was then novated to Mansell.

In June 2021, the current owner of the building, Hive Bethnal Green Limited, issued a claim against Balfour Beatty over the cladding on the building.

Balfour Beatty’s solicitors subsequently wrote to Broadway Malyan’s solicitors in January this year, saying they were keen to understand the background of the case. They asked for: “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 original developer]/the employer on final inspection of the works.”

Broadway Malyan’s solicitors replied to say that, as the design-and-build contractor, Balfour Beatty should have the documentation its solicitors were asking Broadway Malyan for. They made the point that it was for Balfour Beatty to investigate the claims against it, that Broadway Malyan had very little detail of the alleged defects, and had no duty to disclose documents at this very early stage.

In April, Balfour Beatty applied for a court order to force Broadway Malyan to disclose the documents.

Retrieving historic information

In her Technology and Construction Court ruling against Balfour Beatty, Judge Mrs Justice Jefford revealed the not-unexpected challenges the two parties face in sourcing historic information. She said: “The difficulties that Balfour Beatty face with lack of documentation are far from unusual in cases where claims are brought many years after the completion of the works, as they frequently are in the Technology and Construction Court.

“Both parties are faced with a position in which they do not have ready access to documents dating back years and may not even have those documents in their possession at all. Documents appear to have been moved and lost; emails are in an unreadable form.”

Broadway Malyan said that the architect’s Reading office, which has since closed, undertook the project. According to a witness statement from the architect, older documents, including emails, would have been recorded on tape and external IT support will be needed to read them. Some electronic project files have been located, but used software that the architect no longer has and thus cannot easily be accessed.

Meanwhile, 15 boxes of hard copy documents have been retrieved from offsite storage and are being reviewed.

Mrs Justice Jefford said: “Both parties face similar difficulties in searching such hard copy documents as they have and in locating and reading electronic documents and communications for which further IT support is likely to be required.

“The claimant’s application seeks to place on the defendant the burden of searching for, finding and identifying the relevant documents, against the background of the difficulties that both parties face. The application, if granted, would also require the defendant to do so when there is only the most general articulation of what Broadway Malyan is searching for. In itself, that runs contrary to the purpose of the practice direction. For these reasons, I do not make the order for disclosure sought.”

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