Anticipatory BLOs and establishing the relevant liability: BLOs after Crest Nicholson

The TCC’s decision in Crest Nicholson provides the most detailed judicial guidance to date on Building Liability Orders ("BLOs") under sections 130 – 131 of the Building Safety Act 2022 ("BSA"). For parties involved in Defective Premises Act 1972 ("DPA") and wider building safety related claims, the judgment provides useful guidance as to the scope and timing requirements of the BLO regime.

Background 

The case concerned extensive fire safety defects at a residential development known as Admiralty Quarter. The defects included combustible insulation, missing cavity barriers, defective firestopping and compartmentation failures. The D&B contractor, Ardmore Construction Limited ("ACL") entered administration on 28 August 2025. Successful adjudication proceedings were brought by Crest Nicholson (the "Developer"), who alleged ACL had breached duties owed under the DPA. Until this matter, the status of the law regarding an adjudication decision constituting a "relevant liability" for the purposes of a BLO remained unclear. Despite this, the Developer sought a BLO against various companies 'associated' with ACL in an attempt to establish that they were similarly liable for the sums awarded against ACL in the adjudication. 

A New Concept: Anticipatory BLOs 

One of the most important outcomes is confirmation that despite the temporarily binding nature of an adjudication award, the court can grant a BLO before final liability is determined at trial. Mr Justice Constable considered that liability, quantum and contribution being uncertain would not prevent a successful BLO application.

Accordingly, the TCC held that it was just and equitable to order that any future liability for DPA breaches (or building safety risks) would be joint and several across the entities deemed "associated" with ACL.

Further, arguments that relief should be delayed because liability was not crystallised, or because other funding sources were available, were rejected. The court made clear that BLOs are protective and forward‑looking in nature.

Adjudication and "Relevant Liability"

As mentioned, this judgment clarifies that an adjudicator’s decision finding DPA breaches and ordering payment constitutes a “relevant liability” for the purposes of section 130. The interim nature of adjudication did not preclude a BLO; any injustice if the decision were later overturned could be addressed by restitution. 

Jurisdictional challenges to the adjudication were given short shrift, and the court emphasised that partial invalidity of an adjudication award does not prevent a BLO.

For parties pursuing historic fire safety defect claims under the BSA, the decision provides much needed reassurance that adjudication may be used strategically alongside applications for a BLO.

The “Just and Equitable” Test: Purpose Over Fairness

A key theme of the judgment is the rejection of a 'fairness' balancing exercise between the BLO applicant and associated defendants. Arguments based on the claimant’s commercial sophistication, profits, insurance position, or the relative hardship to group companies were not persuasive. In this regard, Mr Justice Constable stated that little weight should be afforded to any points about how substantial or sophisticated the corporation was, or it would lead to the "bizarre outcome that commercially unsuccessful builders were able to avoid the application of the BSA, whilst commercially successful ones could not" (para. 92).

Instead, the court adopted a purposive approach to “just and equitable”, keeping in mind the policy objectives of the BSA which was enacted to ensure effective redress for historic building safety defects and, importantly, preventing responsibility being avoided through corporate structuring. The TCC held that the discretion is broad and must be exercised in a way that advances those objectives.

Other important takeaways 

The decision also provides several other important key takeaways for those involved in BSA litigation:

• Group restructuring to isolate historic cladding or fire safety risk strongly favours BLOs, particularly where control and benefit ultimately rest with the same individuals or trusts;
• BLOs are not confined to SPVs or insolvent shells. The statute is not limited to special purpose vehicle abuse; it is directed at ensuring those responsible for defects pay for remediation;
• The existence of public funding, insurance, or unquantified liability goes to quantum, not whether it is just and equitable to order a BLO; and
• Financial difficulty for associate companies will rarely be decisive absent clear evidence of exceptional injustice.

Conclusion

The Crest Nicholson judgment is welcomed and signals a robust and policy driven approach by the TCC to BLOs. The message is clear that where historic building safety defects exist, and corporate structures have the effect (or even purpose) of seeking to ring-fence liability, the court is prepared to look through those structures to ensure responsibility is not avoided.