Crest Nicholson Regeneration Limited & Ors v Ardmore Construction Limited (in Administration) & Ors

Permission to appeal was refused. A challenge to the exercise of the broad discretion to make a building liability order must identify an error of law, procedural unfairness, failure to consider a relevant matter, consideration of an irrelevant matter, or a plainly wrong decision. Repetition of arguments made below is insufficient.

An anticipatory building liability order may be made where the statutory jurisdiction exists and the order is just and equitable, even though liability or quantum remains to be finally determined. An adjudicator’s decision creates a relevant liability for this purpose, notwithstanding its interim character. A stay or extended time to pay requires cogent evidence of inability to pay, including the resources of owners or closely associated persons, and remains exceptional for commercial judgment debtors.

The judgment concerned consequential matters following the court’s earlier decision, [2026] EWHC 789 (TCC), to make two building liability orders under sections 130 and 131 of the Building Safety Act 2022. The first order transmitted to the BLO Defendants any liability of Ardmore Construction Limited under section 1 of the Defective Premises Act 1972 or arising from a building safety risk. The second made them jointly and severally liable for approximately £14.9 million due under an adjudicator’s decision.

The BLO Defendants sought permission to appeal, a stay of execution or additional time to pay, and challenged Crest’s entitlement to interest and costs. The central issues were whether the earlier discretionary and statutory conclusions had a real prospect of being overturned, whether the defendants had proved inability to pay, and what consequential relief should follow.

1. Permission to appeal. Permission was refused. The applicable test was CPR 52.6. The BLO Defendants’ grounds largely repeated submissions made below and did not show an error of law, procedural unfairness, failure to consider relevant matters, consideration of irrelevant matters, or a decision outside the generous ambit of reasonable disagreement. The exercise of discretion was therefore not arguably plainly wrong.
2. The court had jurisdiction to make an anticipatory BLO. The defendants’ argument would mean that such an order could never be just and equitable before liability and quantum were finally established. That was inconsistent with the statutory jurisdiction and the earlier reasoning in Click St Andrews and BDW Trading Ltd v Ardmore Construction Ltd. An adjudicator’s decision created a liability capable of transmission under the Building Safety Act 2022, even if that liability might later cease to exist. Its interim status could affect discretion but did not remove jurisdiction.
3. The challenge to the adjudicator’s jurisdiction under the Defective Premises Act 1972 had no real prospect of success. The issue had been determined consistently by two High Court judges, although any wider appellate consideration was best left to the Court of Appeal. The significance of the issues did not itself amount to a compelling reason for an appeal or justify certification for a leapfrog appeal to the Supreme Court.
4. Stay and time to pay. The applications under CPR 83.7 and CPR 40.11 were refused. The defendants had not proved, on the balance of probabilities, that funds would not be made available by their owner or a closely associated person. The financial evidence was materially inconsistent, insufficiently supported and lacked transparency. Even if inability to pay had been established, no exceptional circumstances justified departure from the ordinary rule that an adjudication judgment should be paid promptly.
5. Interest and costs. Crest could recover interest at 5% from 5 September 2025. The BLO attached to Ardmore’s liability, which included interest arising from non-payment, and no separate BLO was required. The principal sum was a debt rather than damages, so whether remedial costs had already been incurred was immaterial. Crest was awarded 100% of its costs, subject to assessment if not agreed.

High Court (Technology and Construction Court): The earlier judgment, [2026] EWHC 789 (TCC), made the Anticipatory BLO and Adjudication BLO. The present court refused permission to appeal and dismissed the consequential applications.