The Technology and Construction Court has delivered a landmark judgment in Crest Nicholson v Ardmore Construction Ltd, a decision that provides useful guidance on the practical reach of Building Liability Orders (BLOs) under the Building Safety Act 2022 (BSA). This is only the second reported case in which a BLO has been made and the first to tackle both anticipatory and adjudication based BLOs. There is a lot to digest in the judgment but we have distilled some key comments below.
This judgment also builds on themes explored in our earlier commentary on Building Liability Orders, available here.
Crest Nicholson (Crest) sought BLOs against several Ardmore group companies after defects were identified at Admiralty Quarter and in connection with claims brought against Crest for defects at Portsmouth Naval base. Ardmore Construction Ltd (ACL), the design and build contractor, entered administration the day before an adjudicator awarded approximately £14.9 million for breaches of the Defective Premises Act (DPA) in relation to Admiralty Quarter. With ACL insolvent, Crest applied for two orders: an anticipatory BLO seeking to transfer any future DPA or building safety liability to associated Ardmore entities, and a BLO attaching to the adjudication award specifically.
The Ardmore companies opposed both applications. They argued an anticipatory BLO was premature, as ACL’s liability had not been determined at trial, making group wide exposure neither just nor equitable. They also challenged the adjudication based BLO on the basis that an adjudicator’s decision does not establish a “relevant liability” under the BSA and that adjudicators lack jurisdiction over DPA claims. In addition, they said the temporary nature of adjudication nature made it an unsuitable foundation for such a significant order and that the wider group’s financial exposure should be a reason it is not just and equitable to grant any BLO.
The court rejected the prematurity challenge. Section 130 does not require a liability to be crystallised at trial before a BLO can be granted. Parliament deliberately created a flexible jurisdiction to enable early intervention where group structuring or insolvency might otherwise defeat recovery.
The court considered the following factors when determining whether an anticipatory BLO was “just and equitable”:
The court was equally unpersuaded by the argument that an adjudicator’s decision cannot amount to a “relevant liability”. Adjudication awards are binding unless and until overturned, and nothing in the BSA excludes them from its scope. Their temporary nature does not deprive them of legal effect; adjudication remains a central mechanism for resolving construction disputes, and parliament would have expected it to operate alongside the BSA.
The jurisdictional objection also failed. Duties under the DPA arising from the design and construction of dwellings are sufficiently connected to contractual obligations to fall within adjudication.
When applying the “just and equitable” test to the adjudicator’s award, the court highlighted:
Financial inconvenience to the group, or Crest’s status as a commercial developer, did not weigh against relief. The BSA seeks to prevent evasion of building‑safety liabilities through under‑capitalisation or group structuring, regardless of the claimant’s identity.
Notably, BLOs can be granted before underlying liability is determined. Where a primary contracting entity is insolvent and the evidential position strongly points toward eventual liability, an anticipatory BLO may be appropriate. BLOs are therefore not limited to enforcement; they are also proactive tools to prevent claimants being left with hollow judgments.
The court confirmed that DPA claims can fall within adjudication where statutory duties overlap with contractual obligations. This opens the door for adjudication to be used for substantial and historic building‑safety claims - something many had believed was outside its scope.
The finding that an adjudication award can amount to a “relevant liability” is highly significant. It means that a claimant can obtain an adjudication award against an thinly capitalised contractor and then immediately seek a BLO to enforce it against associated, solvent entities. This provides a fast and effective enforcement route for building‑safety liabilities.
The court is prepared to look beyond corporate formalities. Where liabilities are left with an empty vehicle, associated companies cannot rely on lawful restructuring or corporate separation to escape responsibility. The focus will be on:
Taken together, these developments show a clear approach by the court in ensuring when determining if a BLO is a just and equitable, the courts will seek to fulfil the aim of the BSA. Namely, ensuring those who caused historical building safety defects pay for their remediation. It is not confined to dealing with special purpose vehicles or shell companies. The BLO mechanism is clearly a valuable option for a claimant that can be brought into play at an early stage, used to reinforce adjudication outcomes, and extend across complex group structures where necessary to give practical effect to the BSA’s objectives. The construction sector should anticipate further BLO cases to come.
For further information please contact our construction team.
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