A landmark Technology and Construction Court decision on the scope, timing and effect of Building Liability Orders

This case, before Mr Justice Constable in the Technology and Construction Court, concerned a significant application of the Building Liability Order (BLO) regime under sections 130-131 of the Building Safety Act 2022 (BSA), arising out of extensive fire safety defects at the Admiralty Quarter development in Portsmouth.

The claimants, who are entities within the Crest Nicholson group of companies (Crest), were the developer and headlease proprietor of a large residential scheme completed between 2007 and 2009. The principal contractor, Ardmore Construction Limited (ACL), carried out the works under a design and build contract but entered administration in August 2025, one day before an adjudicator issued a decision awarding Crest approximately £14.9m for fire safety defects in the external wall systems.

Crest alleged extensive building safety risks, including:

• the widespread use of combustible insulation;
• missing and defective cavity barriers;
• deficiencies in fire stopping and compartmentation; and
• defects rendering parts of the development unfit for habitation.

In circumstances where ACL was insolvent and unable to meet either the adjudication award or any future judgment, Crest applied to the High Court for two forms of relief:

1. An “anticipatory” BLO: An order that any liability which ACL might ultimately be found to owe under section 1 of the Defective Premises Act 1972 or as a result of a building safety risk would also be the joint and several liability of associated Ardmore group companies, even though final liability had not yet been determined at trial.
2. An “adjudication” BLO: An order making the same associated companies jointly and severally liable for the £14.9m awarded in the adjudicator’s decision, which had gone unpaid following ACL’s administration

Both limbs of the application were resisted. While the Ardmore group defendants accepted that they were “associates” for BSA purposes, they argued that the application was premature, that it was not just and equitable to impose BLOs at this stage, and that an adjudicator’s decision could not amount to a “relevant liability” under section 130 of the BSA.

The case, therefore, raised important questions about the scope, timing and operation of BLOs, and their interaction with construction adjudication.

The parties’ arguments

The key facts relied on by Crest

• ACL’s insolvency: ACL was in administration and could not satisfy either the adjudicator’s award or any future judgment.
• Cause of administration: ACL entered administration because of exposure to building safety and cladding claims following Grenfell.
• Corporate structure and control: ACL formed part of a wider Ardmore group, ultimately controlled by the same individual, and the group had been restructured to ring fence historic liabilities.
• Existence of building safety risks: The development contained serious fire safety defects amounting to building safety risks under the BSA.
• Likelihood of liability: ACL was likely to be found liable for the defects.
• Knowledge and engagement: The Ardmore group had long standing knowledge of Crest’s claims.
• The adjudicator’s decision: There was an unpaid adjudicator’s award of approximately £14.9m relating to building safety defects.

Crest’s arguments

Crest submitted that:

• without a BLO, any judgment or adjudication award against ACL would be unenforceable;
• the Ardmore group had deliberately structured its affairs to shield itself from historic liabilities;
• the statutory purpose of the BSA would be defeated if solvent associates were not required to stand behind ACL;
• an anticipatory BLO would provide commercial clarity and procedural efficiency; and
• the adjudicator’s decision represented a binding liability arising from building safety risks.

The BLO defendants’ arguments

The BLO defendants argued that:

• the application was premature, given that liability and quantum had not been finally determined;
• it was unfair to impose liability without a full trial on blameworthiness, contribution and third party responsibility;
• Crest was a sophisticated commercial developer and not the intended beneficiary of the BLO regime;
• adjudication amounted only to “rough justice” and could not justify a statutory order; and
• the financial impact on the group rendered the orders unjust.

What the court decided

   The authorities to date

Drawing together the statutory scheme and the developing case law, Constable J (at paragraph 61 of his judgment) distilled the applicable principles as follows

1. The assessment of whether it is just and equitable to grant a BLO is broad and fact specific.
2. The discretion must be exercised having regard to the purpose of the BSA and all relevant factors.
3. The Court has jurisdiction to make anticipatory BLOs, before liability is finally established.
4. Section 130 is intended to enable effective redress against those responsible for building safety defects and is not limited to SPVs or shell companies.
5. The Court should not restrict the statutory discretion by prescribing exhaustive criteria.
6. BLO applications will generally be case managed within the same proceedings as the underlying liability claim.
7. Whether a BLO is determined before, during or after the liability trial is a case management issue, but in every case the order may only be made if it is just and equitable at the time.

The scope and purpose of BLOs

The Court reaffirmed that BLOs under section 130 BSA confer a deliberately broad and flexible jurisdiction, exercisable whenever the Court considers it “just and equitable” to do so. Parliament chose not to prescribe criteria or limits, leaving the exercise of discretion to be fact sensitive and informed by the statutory purpose.

The Court rejected attempts to characterise BLOs as a narrow remedy aimed only at:

• special purpose vehicles,
• thinly capitalised development companies, or
• the immediate facilitation of remedial works for leaseholders.

Instead, section 130 forms part of a wider legislative scheme designed to ensure that those responsible for historical building safety defects ultimately bear the cost, and that liability cannot be avoided by corporate structuring or insolvency.

Anticipatory BLOs: liability need not be established first

A central issue was whether the Court could make a BLO before any final determination of liability against the original body.

The Court held that:

• nothing in the statutory language requires liability to have been established first,
• BLOs may operate as a form of contingent or indemnity style order, and
• anticipatory BLOs can serve an important purpose by clarifying at an early stage whether solvent associates will stand behind the original defendant.

This conclusion was reinforced by the express wording of section 130 (“any relevant liability”) and by the statutory context, including the ability to make BLOs even where the original body has been dissolved.

The interaction between BLOs and adjudication

The judgment provides authoritative guidance on the relationship between BLOs and construction adjudication, a point of major practical significance.

The Court held that:

• an adjudicator’s decision can constitute a “relevant liability” for the purposes of section 130,
• the temporarily binding nature of adjudication does not deprive such a liability of legal effect,
• liability determined by an adjudicator under the Defective Premises Act 1972 falls squarely within section 130(3), and
• alternatively, the failure to comply with an adjudicator’s decision is itself a liability incurred “as a result of a building safety risk”.

Arguments that adjudication is inherently incompatible with BLOs were rejected. At paragraph 192 of his judgment, Constable J emphasised that “a conclusion that adjudication is fundamentally incompatible with the application of BLOs would deprive the construction industry of the use of one of the most important dispute resolution tools from which it has benefited significantly over the last 30 years.” This is particularly so given (in Constable J’s words in paragraph 193 of his judgment) that “building safety matters, in the wake of Grenfell Tower, have given rise to what is probably the single largest area of construction disputes in recent history, if not ever.” Any potential unfairness is addressed through the “just and equitable” safeguard, not by excluding adjudication based liabilities from the statutory regime altogether.