Crest Nicholson v Ardmore: building liability orders, adjudication and the limits of a stay

In a consequentials judgement handed down on 8 May 2026, Mr Justice Constable refused permission to appeal, declined to grant a stay of execution, and awarded interest and full costs to Crest Nicholson following the making of building liability orders (BLOs) against associated companies of Ardmore Construction Limited (in administration). The case — Crest Nicholson Regeneration Limited & Ors v Ardmore Construction Limited (in Administration) & Ors [2026] EWHC 1069 (TCC) — follows the substantive BLO judgement of 1 April 2026 and adds significant further guidance on the procedural and financial dimensions of BLO applications.

Permission to appeal

Five grounds of appeal were advanced by the fourth to tenth defendants (the BLO Defendants). Constable J refused permission on all of them.

On the making of an anticipatory BLO, the court held that the BLO Defendants essentially restated first-instance arguments without engaging with the reasoning of the judgement or demonstrating that the exercise of discretion was plainly wrong. The high threshold established in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 — requiring a misdirection in law, procedural unfairness, or a decision outside the generous ambit of reasonable disagreement — was not met.

The jurisdictional challenge to the two-stage structure of the anticipatory BLO was similarly rejected. Mr Hughes KC had accepted that his argument would, in practice, make anticipatory BLOs impossible; the court declined to read the statute as conferring a jurisdiction that could never be justly exercised.

On the question of whether an adjudicator's decision could give rise to a "relevant liability" capable of founding a BLO, the court held that the interim nature of adjudication does not negate the existence of a liability at the moment the BLO is made, and that excluding adjudicators' decisions from the BLO regime would require an unnaturally narrow reading of the Building Safety Act 2022. Two High Court judges had now reached the same conclusion on adjudicator jurisdiction over Defective Premises Act 1972 claims; the court declined to add a third divergent view. The compelling reasons limb was not a vehicle for circumventing the absence of a real prospect of success, and certification for a leapfrog appeal to the Supreme Court was refused.

Stay of execution

Applying the principles in Wimbledon Construction Co 2000 Ltd v Vago, Andrew v Flywheel IT Services Ltd, and J&B Hopkins Ltd v A&V Building Solution Ltd, the court confirmed that the burden rests firmly on an applicant to establish inability to pay, including by reference to funds available from owners or closely associated persons.

The BLO Defendants served two further witness statements from their financial officer, Mr Horne, in support of the stay application. Constable J found the evidence deeply unsatisfactory. Cash-flow forecasts for the same period varied by millions of pounds across statements prepared weeks apart, with no explanation offered. Property valuations fell by £16m between the third and fourth statements. A proposed refinancing facility was described in materially inconsistent terms. The court concluded that the financial picture presented fell significantly below the coherent and robust standard required.

Critically, no evidence was provided by Cormac Byrne, the ultimate owner, whose personal fortune — described as the fruit of the Ardmore Group — was reported to exceed the judgement sum. The failure to address the Goldtrail question of whether funds could be made available by the owner was, alone, sufficient to defeat the stay application. Discretion did not arise.

Interest and costs

Crest was awarded interest at 5% from 5 September 2025. The BLO attaches to the liability of the original debtor, ACL, and that liability includes interest accruing on the unpaid adjudicator's decision. No separate BLO was required in respect of the interest element; the BLO Defendants could have discharged the debt at any point following the adjudicator's decision.

On costs, the BLO Defendants argued for a 10% reduction to reflect their partial success on the "specified description" issue. The court rejected this. The point on which they succeeded was limited to the abstract question of whether a BLO may transmit some rather than all liability — a minor issue in the context of the application overall. Crest was awarded 100% of its costs.

The BLO Defendants were ordered to pay in accordance with the Adjudication BLO within 14 days of the formal hand-down of this judgement.