Adjudication Decisions as a basis for Building Liability Order and the Availability of Anticipatory BLOs: Crest Nicholson Regeneration Ltd & Ors v Ardmore Construction Ltd & Ors [2026] EWHC 789 (TCC)

Andrew Mace analyses the TCC’s decision in Crest Nicholson Regeneration Ltd & Ors v Ardmore Construction Ltd & Ors [2026] EWHC 789, clarifying how adjudication decisions can found Building Liability Orders and the circumstances in which anticipatory BLOs may be granted under the Building Safety Act 2022.

---

Background 

Crest Nicholson Regeneration Ltd and associated group companies (‘Crest’) brought an application (‘the Application’) for building liability orders (‘BLOs’) pursuant to sections 130-131 of the Building Safety Act 2022 (‘BSA’). 

Crest had obtained an adjudication decision (“Adjudication Decision”) against Ardmore Construction Ltd (‘ACL’). ACL had been placed into administration the day before the Adjudication Decision was handed down. 

Crest and ACL were parties to further proceedings brought against Crest by Portsmouth Naval Base Property Company (Queen Street) Limited and Portsmouth Naval Base Property Trust (‘the Proceedings’). 

Relief sought  

Crest sought two forms of relief. 

1. Crest sought what has been described as an ‘anticipatory’ BLO against the Fourth to Tenth Defendants (‘the BLO Defendants’) in respect of any liability that ACL may ultimately be found to owe under section 1 of the Defective Premises Act 1972 (‘the DPA’) or arising from a ‘building safety risk’ within the meaning of section 130(6) of the BSA (‘the Anticipatory BLO’).  

 The terms of the Anticipatory BLO sought were:  

“Any liability that the First Defendant may have to the Claimants under section 1 of the Defective Premises Act 1972 or as a result of a building safety risk is also the joint and several liability of each of the [BLO Defendants].”  

2. Crest sought an order (‘the Adjudication BLO’) making the BLO Defendants jointly and severally liable for the sum of c.£14.9m, awarded against ACL in the Adjudication Decision.  

Objections 

The BLO Defendants argued that ordering an Anticipatory BLO would be premature and that the Court should not determine issues said to be ‘just and equitable’ without a full trial. They also contended that it would not be ‘just and equitable’ to make an Anticipatory BLO. 

In relation to the Adjudication BLO, it was argued that the enforcement of the Adjudicator’s Decision was not procedurally before the Court on this Application on the grounds that, “an adjudicator’s decision, or the obligation to comply with such a decision, is not a “relevant liability” within section 130(3); that the adjudicator (‘the Adjudicator’) arguably lacked jurisdiction such that the Adjudicator’s Decision is not (summarily) enforceable, and that, if these arguments fail, that it would not in any event be just and equitable to impose the Adjudication BLO.”  

 Issues to be determined 

There were thus two fundamental issues to be determined by the court:  

“(1) where a principal contractor has entered administration against the backdrop of allegedly extensive fire safety defects, and where both factual and legal responsibility for any such defects is in dispute, is it nevertheless just and equitable for the Court to determine in advance of trial that associated companies should stand behind any relevant liability ultimately established?; and  

(2) how, if at all, are the provisions for BLOs applicable to liabilities arising out of the decision of an adjudicator, pursuant to statutory or contractual regimes required by the Housing Grants, Construction and Regeneration Act 1996 (‘HGCRA’)?” 

Administrators’ proposals 

The Administrators’ proposals in respect of ACL identified that the decision to place it into administration was primarily as a result of its exposure to claims relating to cladding defects following the Grenfell Fire. There was no indication that, following its administration, ACL would have the means to satisfy either the Adjudicator’s Decision, which has, as a matter of fact, gone unpaid, or any judgment at the conclusion of the Proceedings. 

Is it just and equitable to grant a BLO? 

Constable J very helpfully reviewed the authorities and other material referred to the Court and summarised as follows: 

“(1) the assessment of whether it is just and equitable to grant a BLO is a broad test and necessarily fact specific; 

(2) the power is discretionary and should therefore be exercised having regard to the purpose of the BSA and all relevant factors; 

(3) the power includes the ability to make an anticipatory BLO, that is a BLO which is ordered before a finding of any relevant liability; 

(4) the purpose of section 130 of the BSA is to provide the Court with powers to allow those directly responsible for defective work which gives rise to a relevant liability for the purposes of the statute to be pursued through their associates. Whilst those powers may have the effect of removing the protections afforded by special purpose vehicles and shell companies, the purpose of the BSA should not be defined as in any way limited to being directed at special purpose vehicles and shell companies; 

(5) the Court should not seek to limit or circumscribe the statutory test by setting out an exhaustive list of factors; 

(6) it will generally be sensible for an application for a BLO to be case managed within the same proceedings as the main action which will determine the liability which is claimed to be the relevant liability for the purposes of the BLO; 

(7) whether an application for a BLO should be determined in advance of, as part of, or indeed after, the liability hearing in the main claim will be a matter of case management. Ultimately, whenever the application is heard, it may only be acceded to where the Court concludes that, at the point it is making the BLO, it is just and equitable to do so.” 

Anticipatory BLO 

The first reported decision in which a BLO was made is 381 Southwark Park Road RTM Company Ltd v Click St Andrews Ltd [2024] EWHC 3569 (TCC) (“Click St Andrews”). 

In Click St Andrews, Jefford J ordered the BLO at a point at which the relevant liabilities had yet to be quantified. 

In Crest the BLO Defendants argued it was premature to decide whether to grant a BLO given there were an extremely broad range of factors which a tribunal may and indeed ought to consider when applying the ‘just and equitable’ test, the decision can only be made after full investigation and examination and the Court was not in any position to reach a concluded view on relevant factors, whether individually or taken together, which would influence the outcome if the Application was made following trial. 

It was Crest’s case that the following weighed in favour of making a BLO: 

 (1) ACL was in administration and did not have the means to satisfy any judgment against it; 

 (2) ACL specifically entered administration because of its exposure to claims in relation to defects following the Grenfell Tower fire;  

(3) ACL is part of the Ardmore Group, which includes the BLO Defendants; 

 (4) the Ardmore Group has been specifically restructured to ringfence ACL’s liabilities from those of other companies within the group;  

(5) ‘all roads lead to Cormac Byrne and/or the Byrne Family Trust’;  

(6) there can be no real dispute that the Development contains building safety risks within the meaning of section 131(6) of the BSA;  

(7) there can be no real doubt that ACL will be liable for those building safety risks; 

(8) ACL has been alive to both Crest’s claim and third-party claims for a long time;  

(9) there can be no real doubt that Cormac Byrne, and therefore the BLO Defendants, know all about Crest’s claims and have known for some time; 

(10) the BLO Defendants were sent formal pre-action protocol letters of claim almost a 

year ago, and they showed little interest in engaging;  

(11) Cormac Byrne remains remarkably silent in this Application;  

(12) there remains an Adjudicator’s Decision for c.£14.9m relating to the External Wall Defects that has gone unpaid. 

 

The Court found facts 1-5 established, facts (6), (7), (8), (9) and (10) were made out on the evidence before the Court and Fact 12 was uncontroversial (and is principally relevant to the Adjudication BLO). 

With regard to fact (11) the court found [at 71]: 

“Fact (11) is principally relevant to what the Court should make of the evidence of the BLO Defendants’ financial standing and is considered further below in the context of the relevant aspects of argument. It is a matter of record that Mr Byrne did not submit any evidence on the application in support of the BLO Defendants’ position that it would not be just and equitable presently to make either of the sought BLOs. It is also true, as Mr Hughes KC points out, that it is Mr Byrne who has signed a statement of truth on the Amended Defence, and the propositions advanced in that document (which include reasons why it is said that it is not just and equitable to make an order) can therefore be attributed to him on this Application.” 

 Constable J found, [at 110]  

“Click St Andrews made it clear that the Court can grant an unspecific BLO following findings of liability in advance of quantifying those liabilities or providing a specified description of which defects the BLO applies to. There is no reason in principle not to apply this two-stage process, inherent in an anticipatory BLO, to the future possibility of a reduction in a relevant liability upon its transmission when identifying the relevant liability or, as may be required, a specified description of the relevant liability, providing it is just and equitable to adopt this approach when the anticipatory BLO is made.” 

Adjudication BLO 

Is the Adjudicator’s decision a relevant liability pursuant to section 130? 

Constable J found [at 140] 

“the failure to comply with the Adjudicator’s Decision is itself a liability which is capable of being a ‘relevant liability’ for the purposes of the BSA. It is a liability that was ‘incurred as a result of a building safety risk’, by reason of a sufficient causal nexus between the substantive liability (determined by the Adjudication) and the consequent liability (created by non-payment).” 

Is the Adjudication Decision procedurally before the court? 

Crest relied upon the Adjudication Decision as a binding determination of ACL’s liability under the DPA unless and until challenged by the Joint Administrators.  

Constable J found [at 128-129],  

“128… the Court is capable, on an application brought pursuant to section 130, of determining the existence of such liability when ordering (should it be just and equitable) its transmission to an associate.  

1. 129. If I am wrong about this, the substance of the enforceability of the Adjudicator’s Decision is, in any event, in issue between the parties. Had it been necessary, I would have granted permission for Crest to amend its application to bring a summary judgment application against ACL, granting such relief as necessary pursuant to CPR3.10(a). For the reasons set out in Section H3, I would have summarily determined that the Adjudicator’s Decision should be enforced against ACL.”

 Constable J found the phrase “under the contract” within the HGCRA (and therefore within the D&B Contract) included the jurisdiction to consider a claim brought under the DPA for works carried out pursuant to a construction contract. 

Accordingly it was determined that the  Adjudication Decision was enforceable, was a ‘relevant liability’ for the purposes of section 130 of the BSA and, thus could be the basis of a BLO. 

As a result, both the Anticipatory BLO and the Adjudication BLO were ordered.