English Technology and Construction Court confirms building liability orders can be secured before trial

In the most significant Building Liability Order (BLO) judgment to date, on 1 April, in Crest Nicholson v Ardmore, Mr Justice Constable has confirmed that anticipatory BLOs under the Building Safety Act 2022 (BSA) are available as a remedy before trial of the underlying claim, and that an adjudicator's decision at an interim stage of a dispute constitutes a "relevant liability" capable of grounding such an order.

The court also provided important guidance on applying the statutory test of whether it is "just and equitable" to impose a BLO under the BSA. It indicated that a BLO defendant will face a high bar in resisting a BLO, with the statutory purpose of the BSA weighing heavily in claimants' favour.

This is likely to encourage claimants to pursue BLOs at an earlier stage of building safety disputes. It will be interesting to see if this changes the approach defendants (and their associated group companies) adopt in resisting these claims.

Background to the case

Ardmore Construction Limited designed and built the Admiralty Quarter, a 19-building residential development in Portsmouth, under a JCT (Joint Contract Tribunal) design and build contract with Crest Nicholson Regeneration Limited. Following post-Grenfell investigations, Crest alleged widespread fire safety defects including combustible insulation, missing cavity and fire barriers, and missing fire-resistant sheathing board.

In May 2025, Crest commenced an adjudication. The adjudicator found breach of both the design and build contract and the Defective Premises Act 1972, awarding approximately £14.93m against Ardmore. Ardmore entered administration the day before the decision was issued, and the court found from the evidence that the administration was driven wholly or significantly by its post-Grenfell cladding exposure. The adjudicator's award was not met by Ardmore.

Crest then applied for two BLOs against associated companies in the Ardmore Group. One was an anticipatory BLO covering any future liability established at trial, with a second BLO attaching to the unpaid adjudication award.

The anticipatory BLO 

Under the BSA, the High Court is able to make a BLO "if it considers it just and equitable to do so."

Prior to this decision, it had not been squarely decided on a contested application whether a BLO could be made at an anticipatory stage before any relevant liability had been established at trial, though the weight of authority suggested it could.

There are clear advantages for a claimant in confirming whether it will be able to recover from the targets of a BLO before it incurs the costs of pursuing a claim against a defendant that may be at risk of insolvency.

For the first time, however, the court confirmed that the statute does not require the relevant liability to have been established before the BLO is made. The key question is whether the court is sufficiently confident that the same order would be made after trial.

In the anticipatory BLO against Ardmore, the court reasoned as follows:

• It was satisfied to a high degree of confidence that the development contains building safety risks and that Ardmore would be liable for these. Ardmore's own former expert had concluded the external wall defects created an intolerable safety risk.
• The decision to place Ardmore into administration was driven by its cladding exposure. From that point, Ardmore had the same practical effect as a thinly capitalised special purpose vehicle, with no prospect of satisfying any judgment.
• Ardmore's new group holding company, ACGL, was incorporated to create a structure capable of isolating historic liabilities, reducing insurer and counterparty risk, and enabling distinct trading operations. Liabilities covered by the BSA were said to be plainly among those targeted for isolation.
• Ardmore and its associated group companies had long knowledge of Crest's allegations and a proper opportunity to advance a positive case on the merits, but had failed to do so.

The court also confirmed a new statutory interpretation point. The BSA is wide enough to permit the court to transfer only a specified proportion of a liability to an associate rather than the full amount, where justice and equity require it.

Are there cases where it will not be just and equitable?

The court gave little weight to factors advanced by the companies in the Ardmore Group in resistance of the BLO, including: the comparative financial positions of Ardmore and Crest, an absence of a cash-flow need by Crest, and the potentially significant and uncertain financial impact on the associated companies in the Ardmore group.

It went as far as to say "a deleterious financial effect" to those parties would not be regarded as "weighty prejudice". The suggestion is that, save in exceptional circumstances, the default position is one in which an order will be just and equitable.

By the court's reasoning, there may be cases where a BLO should not be made, particularly where the associated company has no real connection to the works or the risk. The more remote the link, the better placed a BLO defendant would be to resist an order transmitting liability.

Osborne Clarke comment

BLOs are a relatively new remedy, and the courts are still in early stages of developing the parameters of what “just and equitable” means in practice. This judgment is a helpful walkthrough of the factors the court considered relevant.

In practice, the decision should give claimants confidence that a BLO can be pursued early, meaning they may be able to avoid lengthy and costly litigation against an insolvent defendant where it is unclear that any liability can be met. Strategically, an anticipatory BLO can assist to identify a solvent target early in any dispute.

For groups with historic building safety exposure, this judgment underlines that restructuring and insolvency will not necessarily lower or extinguish the risk of liability, and may instead accelerate the route to liability elsewhere in the corporate structure. It suggests there may be benefit in engaging with claims against associated companies early to avoid a BLO application. It remains to be seen how defendants to such claims react to these risks. 

Amelia Atkinson, an Associate with Osborne Clarke, contributed to this Insight.