Building Liability Orders (BLOs) – Crest Nicholson v Ardmore

In this article, Rachel Murray-Smith, Conrad Turnock and Helen Arthur explain the significance of Crest Nicholson v Ardmore Ardmore [2026] EWHC 789 (TCC); [2026] EWHC 1069 (TCC), one of the first major decisions to consider the scope of building liability orders under the Building Safety Act 2022 and its impact on available routes to recovery.

The case is important because it shows how the court may be willing to use building liability orders to extend liability beyond the original contracting entity, including in circumstances involving insolvency, group company structures and adjudication awards. It also provides early judicial guidance on the practical reach of this developing area of law and the routes that may be available to claimants seeking recovery for building safety defects.

Contents

• What is a building liability order
• What happened in Crest v Ardmore
• The ‘anticipatory BLO’
• The ‘adjudication BLO’
• Refusal of permission to appeal
• Key takeaways

What is a building liability order (BLO)

Building liability orders are a relatively new tool introduced by sections 130-131 of the Building Safety Act 2022 (“BSA”). They allow the High Court to extend liability for building safety defects beyond the company that was directly responsible for those defects, reaching other companies within the same corporate group where this is considered just and equitable. In practice, this means that responsibility for defects does not always stop with the contracting entity, particularly where that entity no longer has the financial means to meet a claim.

The court has a wide discretion when deciding whether to make an order. It must be satisfied that doing so is just and equitable, and will take into account all of the circumstances of the case. BLOs are designed to ensure that corporate structures cannot be used to avoid liability. Where responsibility for defective works sits with an insolvent company, the court can look at the wider group and require associated entities to share that liability.

What happened in Crest v Ardmore

The dispute arose from fire safety defects at a residential development in Portsmouth for which Ardmore Construction Ltd (“Ardmore”) acted as design and build contractor. Prior to the High Court proceedings, Crest Nicholson (“Crest”) obtained an adjudication decision awarding approximately £14.9 million in relation to external wall defects. Ardmore entered into administration the day before the provision of the adjudicator’s decision.

Crest applied for building liability orders against other companies within the Ardmore group. The applications raised two distinct issues:

1. The ‘anticipatory BLO’ – whether a building liability order could be made before liability had been finally determined, and
2. The ‘adjudication BLO’ – whether an adjudicator’s decision could amount to a liability capable of being extended to associated entities.

Both applications required the Court to consider the scope of the legislation and how it should operate in practice, particularly in the context of insolvency and group structures.

The ‘anticipatory BLO’

One of Crest’s applications sought what is being referred to as an ‘anticipatory building liability order’. Rather than waiting for the outcome of the trial, Crest asked the Court to order that any liability established against Ardmore would also be the liability of the wider group.

The Court confirmed that this approach is permitted under the legislation. There is no requirement for liability to be finally established before a building liability order can be made. Instead, the key question is whether it is just and equitable to grant the order at that stage of the proceedings.

In this case, several factors pointed strongly towards making the order; the original contracting entity was in administration and would be unable to satisfy any judgment. Crest had relied on several ‘key facts’ in support of its application, principally that:

(1) Ardmore is in administration
(2) Ardmore entered administration because of the extent of its exposure
(3) Ardmore is part of the Ardmore Group
(4) the Ardmore Group has been specifically restructured to ringfence ACL’s liabilities.

The Court found that those facts were established for the purposes of the Application.[1]

The Court was also satisfied “to a high degree of confidence” that “there can be no real dispute that the Development contains building safety risks… [and] no real doubt that ACL will be liable”[2]. The Court therefore considered that, on those facts, it was likely that a building liability order would be made later in any event. Addressing the issue early avoided unnecessary delay and ensured that the proceedings reflected the commercial reality of where responsibility lay. An anticipatory order was therefore granted.

The ‘adjudication BLO’

Crest also sought to extend the liability for the adjudicator’s award to the associated companies. This raised the question of whether an adjudicator’s decision constitutes a “relevant liability” for the purposes of section 130(2) of the BSA.

The Court held that it does. Although adjudication decisions are temporarily binding and may be revisited in subsequent proceedings, they nevertheless give rise to a binding obligation unless and until overturned. That obligation falls within the scope of the statutory concept of liability.

Ardmore had attempted to argue that for an interim liability created by adjudication to fall within the BLO regime, the BSA would need to expressly provide for this. The Court rejected this line of reasoning, stating that “if Parliamentary intention had been that the two regimes – the statutory scheme for adjudication, and the statutory scheme created by the BSA – were mutually exclusive, it is this that one might have assumed would be spelt out ”[3].

The provisional nature of adjudication was relevant when considering whether it was just and equitable to make the order, but it did not preclude relief. The same factors that justified the anticipatory building liability order were present, including insolvency, the structure of the group, and the strength of the underlying claim.

As a result, the associated companies were made to share in the liability for the adjudicator’s award of approximately £14.9 million.

Refusal of permission to appeal

Subsequently the court has since refused permission to appeal.

The Court did not consider that the issues raised required further consideration by an appellate court. The 5 grounds of appeal were that:

1. The Court was wrong to decide that it was just and equitable to grant an anticipatory BLO;
2. The Court was wrong to make an anticipatory BLO now while leaving to trial the question of what (if any) of the specified description of the relevant liability would be subject to a BLO;
3. The Court was wrong to decide that the Adjudicator’s Decision gave rise to a relevant liability which could be subject to a BLO;
4. The Court was wrong to decide that the BLO Defendants did not have a better than merely arguable case that the Adjudicator lacked jurisdiction. In particular, the Adjudicator did not have jurisdiction to decide that ACL was liable under the Defective Premises Act 1972; and
5. The Court was wrong to decide that it was just and equitable to grant a BLO in respect of the Adjudicator’s Decision.

Each ground of appeal failed. In respect of the first, it was noted that the decision to grant the anticipatory BLO involved the Court’s discretion as to whether it was just and equitable. It was noted that there are very limited circumstances in which the appeal courts will be willing to interfere with a lower court’s use of such discretion.

Regarding the second ground of appeal, the Court held that there were no reasonable prospects of successfully arguing that the Court has no jurisdiction to make a two-stage BLO order. It was accepted in argument that if this ground was successful, it would mean that there would in practice never be such thing as an anticipatory BLO. The Court was not willing to accept that the legislation would give it jurisdiction to make an order that in “practical terms, could never amount to a just and equitable one”[4].

In respect of the other grounds of appeal, the Court found that the appellants had failed to engage with the reasoning and logic in the original decision and had largely attempted to re-run arguments that were already advanced in the first instance.

Key takeaways

This judgment demonstrates that the courts are willing to engage with the BLO regime and use its discretion widely where appropriate. It has also given us the important new concepts of the ‘anticipatory BLO’ and the ‘adjudication BLO’. Developers and clients should be aware that BLOs can be given before liability has been finally determined and can also attach to liability pursuant to an adjudicator’s decision.

The subsequent unsuccessful permission to appeal affirms that the appellate courts will be unwilling to interfere with a judgment fairly reached by the lower court exercising its discretion. Therefore, future appeals may well suffer a similar fate without the introduction of novel points of argument.

Rachel Murray-Smith is a Partner, Conrad Turnock is a Trainee Solicitor and Helen Arthur is a Senior Professional Support Lawyer at Sharpe Pritchard LLP.

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[1] Crest Nicholson Regeneration Ltd & Ors v Ardmore Construction Ltd & Ors [2026] EWHC 789 (TCC) (01 April 2026), Paras 66-67

[2] Paras 66 and 68

[3] Paras 137

[4] Crest Nicholson Regeneration Ltd & Ors v Ardmore Construction Ltd & Ors [2026] EWHC 1069 (TCC) (8 May 2026), Para 8