Crest Nicholson v Ardmore: anticipatory building liability orders and adjudication decisions under the BSA

In Crest Nicholson Regeneration Limited & Ors v Ardmore Construction Limited (in Administration) & Ors [2026] EWHC 789 (TCC), Mr Justice Constable has delivered a significant judgement on the Building Safety Act 2022 ("BSA"), addressing two novel questions: whether the High Court may make a building liability order ("BLO") in anticipation of a finding of relevant liability, and whether an adjudicator's decision can itself constitute a "relevant liability" for the purposes of section 130.

The dispute concerned fire safety defects at the Admiralty Quarter development in Portsmouth, comprising 19 residential apartment buildings constructed between 2007 and 2009. The principal contractor, Ardmore Construction Limited ("ACL"), entered administration on 28 August 2025 — the day before an adjudicator's decision was issued holding ACL liable for approximately £14.9 million in respect of external wall defects. Crest sought two forms of relief: an anticipatory BLO against associated group companies (the "BLO Defendants"), and a BLO making those companies jointly and severally liable for the adjudicated sum.

The BLO Defendants accepted they were "associates" of ACL under section 131 but argued it was premature to make any BLO ahead of trial. Constable J rejected this framing. Drawing on BDW Trading Ltd v Ardmore Construction Ltd [2025] 1 WLR 3101, he confirmed the court has jurisdiction to make an anticipatory BLO — one that operates as a contingent indemnity, attaching to any relevant liability subsequently established — and that the timing of any such application is a matter of case management, not jurisdiction.

On the facts, the court was satisfied to a "high degree of confidence" that the development contained building safety risks and that ACL would ultimately be found liable. The Ardmore Group had been deliberately restructured to isolate ACL's historic liabilities, and ACL had been placed into administration specifically because of its exposure to post-Grenfell claims — precisely the mischief that section 130 was designed to address. The court held that the relative profitability of the developer versus the contractor was entitled to little weight, and that uncertainties around quantum, insurance recoveries, or the potential blameworthiness of third parties were no bar to making the order now, provided the assessment was conducted on a worst-case basis for the BLO Defendants.

The BLO Defendants argued that an adjudicator's decision — being only temporarily binding — could not constitute a "relevant liability" under section 130(3). Constable J disagreed. A decision binding on the parties until overturned by the court plainly creates a liability; the fact that standard enforcement proceeds via the obligation to pay does not negate the substantive finding beneath it. The court also confirmed, following analysis of Aspect Contracts v Higgins [2015] UKSC 38, that a restitutionary remedy would be available to the BLO Defendants if the underlying liability were subsequently disproved at trial, and that CPR 3.1(7) preserved the court's ability to vary or revoke the order in light of materially changed circumstances.

On jurisdiction, the court endorsed the reasoning of Joanna Smith J in BDW Trading Ltd v Ardmore Construction Ltd [2024] EWHC 3235 that a claim under the Defective Premises Act 1972 falls within the phrase "a dispute arising under the contract" in section 108 of the Housing Grants, Construction and Regeneration Act 1996, applying the approach in Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40 by analogy to construction adjudication.

The judgement confirms that the "just and equitable" test under section 130 is deliberately broad and cannot be constrained by reference to whether a claimant has a "good reason" for seeking an order at a particular stage of proceedings. The court also held, on a point of statutory construction, that the phrase "any relevant liability of a specified description" in section 130(2) permits the court to transmit only a proportion of a relevant liability where justice and equity demand it — providing associates with a degree of protection that a purely binary approach would not allow.

The combination of adjudication and the BLO regime creates, as Constable J observed, an effective enforcement pathway for building safety claims that does not require a claimant to await the conclusion of a full High Court trial.

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