A strategic shift for social housing providers
The High Court’s decisions in Crest Nicholson v Ardmore have already been widely recognised as a major development in the Building Liability Order (BLO) regime under the Building Safety Act 2022 (BSA). As discussed in our earlier note, the Court has made clear that the regime will be applied robustly and that liability can extend across corporate groups.
This article focuses on a distinct—and potentially more strategically important—aspect of the decision: the confirmation that BLOs can be granted on an anticipatory basis, before liability has been finally determined.
That shift moves BLOs from a purely enforcement-focused remedy to something more significant. The key question is no longer simply whether liability can be extended across a group, but when that extension can be secured—and how early a claimant can mitigate enforcement risk.
Beyond enforcement: the emergence of anticipatory BLOs
As our earlier note explains, a BLO enables the Court, where it is “just and equitable” to do so, to extend a building safety liability from one company to its associated entities. This reflects a deliberate policy choice: to prevent liability being left behind in insolvent or thinly capitalised vehicles.
The important development in Crest Nicholson is how far that principle can be taken in practice.
Crest sought an order that, if the contractor (Ardmore Construction Ltd) were ultimately found liable at trial, that liability should already be fixed across the group now.
The contractor’s case was that this was premature and should await a final determination. The Court rejected that argument and confirmed that anticipatory BLOs fall squarely within the scope of the statutory regime.
For claimants, this is a meaningful shift. It allows the Court to address the risk of non-recovery before it crystallises, rather than after it is too late.
A consistent thread: timing, not just liability
Seen in context, anticipatory BLOs are a logical extension of the Court’s broader approach.
As noted in our earlier commentary, the Court was unconcerned by arguments based on financial weakness and solvency risk. Rather than treating those factors as reasons to defer relief, the Court treated them as part of the commercial reality which the BLO regime is designed to address.
The emphasis, therefore, is not simply on who is liable, but on ensuring that liability attaches in a way which is practically enforceable.
For social housing providers, this distinction is critical. The difficulty in many building safety claims has not been establishing defects or breach—but ensuring there is a viable target at the point of recovery.
The threshold: strong cases, properly evidenced
That said, anticipatory BLOs are not a shortcut.
The Court’s task remains to determine whether it is just and equitable to make the order, which in turn requires sufficient confidence—on the available material—that liability is likely to arise.
In Crest Nicholson, that threshold was met because the Court was satisfied that:
- serious fire safety defects existed; and
- the contractor would be found liable for them.
- That evidential foundation was central to the outcome.
In practice, therefore, anticipatory BLOs are likely to be most effective where the underlying case is already well advanced—with clear technical evidence and a coherent narrative of responsibility. They are unlikely to be a tool for speculative or lightly prepared claims.
Adjudication as a bridge to early recovery
Set against that analysis, the Court’s approach to adjudication—discussed in our earlier note—takes on added significance.
The confirmation that an adjudicator’s decision can constitute a “relevant liability” for BLO purposes means that claimants may be able to:
- establish a liability position at speed; and
- use that position as a springboard for group-wide exposure
When combined with anticipatory BLOs, this creates a more integrated strategy. Rather than adjudication being an end in itself, it can form part of a broader approach to securing recoverability at an early stage.
The practical effect is to bring forward the point at which a claimant can engage with the entities that have real financial substance.
What this means in practice for social housing providers
For registered providers managing significant remediation programmes, the implications are both practical and strategic.
Earlier focus on the corporate group
The starting point will increasingly be to identify, at an early stage:
- the relevant contracting entity;
- its financial position; and
- the wider corporate structure and decision-making framework
The question is no longer simply whether a claim exists, but whether it can be structured to capture the right defendants at the right time.
A shift in litigation timing
The availability of anticipatory BLOs creates a genuine opportunity to address recovery risk during the life of the dispute, rather than at its conclusion.
That is likely to front-load work in many cases—particularly in terms of:
- expert evidence on defects; and
- analysis of group relationships and control.
However, it also reduces the risk of investing in claims which ultimately prove difficult to enforce.
Increased leverage in disputes
The prospect of early, group-wide liability is likely to have a tangible impact on how disputes are conducted.
The risk of a BLO application—particularly one made at an early stage—may encourage:
- earlier engagement from group entities;
- more pragmatic settlement positions; and
- greater willingness to fund remedial works
In practice, the leverage created by the availability of anticipatory BLOs may be as significant as their eventual grant.
A more realistic route to recovery
Ultimately, the importance of anticipatory BLOs lies in their ability to address the central risk in many building safety claims: that liability may be established, but never recovered.
The Court has made clear that it is prepared to intervene before that risk materialises.
Conclusion
The Crest Nicholson v Ardmore decisions confirm that the BLO regime will be applied purposively, in line with the objectives of the BSA. As our earlier note highlights, liability can and will extend across corporate groups where it is just and equitable to do so.
The recognition of anticipatory BLOs takes that a step further. It introduces a timing dimension: allowing the Court to ensure that the right parties are within scope before liability is finally determined.
For social housing providers, that represents a shift in approach. BLOs are no longer simply a remedy of last resort. In the right case, they are a strategic tool for managing recovery risk early and effectively.
The key will be knowing when the evidential position is strong enough to justify their deployment—and acting before the opportunity is lost.
If you would like to discuss any issues raised in this article, please contact the author, Greg Carter.