Building Safety Act case law begins to take shape as TCC clarifies liability routes
Two recent TCC Decisions Cast Light on how the Building Safety Act 2022 is starting to work in practice.
The Building Safety Act 2022 (the “Act”) is the UK’s landmark piece of legislation affecting how high-rise buildings are regulated in light of the Grenfell Tower disaster and also addressing how historic building safety defects are dealt with. A body of case law drawing on the Act is starting to take shape and it is possible to identify a theme that indicates, initially at least, a positivity with the Courts to prioritise the interest of residents and pursue those responsible for building safety failings.
These decisions follow on from the UK Government’s announcements during 2026 concerning remediation and the regulation of construction products. These developments taken together indicate a more cohesive approach to dealing with building safety and the cladding matters that have come to light since the Grenfell disaster.
Crest Nicholson Regeneration Ltd v Ardmore Construction Ltd (In Administration) [2026] EWHC 789 (TCC)
The decision in Crest Nicholson came in the first quarter of 2026 before the Technology and Construction Court (“TCC”). The Court was asked to make Building Liability Orders (“BLOs”) against Ardmore Construction Limited (in administration) (“ACL”) and related companies. BLOs were one of the most controversial components of the Act where corporate liability is imputed to companies other than the company that would ordinarily be considered liable for the defect. BLOs are Court orders that allow liability for a building safety matter to be passed to an associated company.
The dispute related to a residential development in Portsmouth constructed between 2007 and 2009. The First Defendant, ACL, was appointed by Crest Nicholson Regeneration Limited (“Crest NRL”) to carry out the design and construction of the properties. Investigations that took place to the properties following the Grenfell Tower disaster indicated that the “external wall systems” were unsafe and an unacceptable fire safety risk to residents. It was also alleged that internal fire safety defects were identified at the development. The nature and scale of the defects led to a pre-action protocol litigation process being commenced by Crest NRL followed by an adjudication process in May 2025 aimed at recovering the remediation costs from ACL. The adjudication found that ACL was in breach of contract as a result of the fire safety defects in the Development – ACL entered into administration at around the same time as the adjudication decision.
Subsequently, the Claimant parties (“Crest”) commenced Court proceedings against the Defendant Parties (“Ardmore”) to obtain i) a BLO against a number of the Ardmore parties for liability that ACL might owe and ii) a BLO against a number of Ardmore companies for the adjudicator’s award against ACL.
Ardmore’s case centered on the argument that it was too early to determine a BLO before the hearing of the facts at a full trial. The reasoning put forward in support of Ardmore’s position was that a Court might reach a number of different positions based upon evidence that could only be dealt with through examination at trial. HHJ Constable was persuaded by a number of factors including decisions in Willmott Dixon Construction Ltd v Prater [2024] EWHC 1190 (TCC), 214 ConLR 164 and Southwark Park Road RTM Company Limited v Click St. Andrews Limited [2024] EWHC 3179 (TCC) that there was no requirement for liability to be established before a BLO can be made. In doing so he differed in approach to the ‘full trial’ argument made by Ardmore.
The Court’s position being: “Ultimately, whenever the application is heard, it may only be acceded to where the Court concludes that, at the point it is making the BLO, it is just and equitable to do so.”.
The enforcement of the adjudicator’s award through the making of a BLO drew upon the interim nature of adjudications with the statutory basis for their enforcement based upon the statutory requirement for Court action: – “Its interim status does not mean that, pending any trial, it somehow does not create a liability. It plainly does. ”. The key to the decision was then whether pursuant to s.130 of the Act, the adjudicator’s decision was a ‘relevant liability’. The Court, relying upon the liability findings of the adjudicator, which were “presently binding” on Crest and ACL, agreed that the BLO should be made.
The decision is a key indicator that BLOs are an active tool that the Courts are willing to make use of at an interim stage to ensure that liability for building safety defects is managed and determined in the interests of residents. In doing so, the Court looked favourably on ensuring that responsibility for the remediation process was not unnecessarily delayed by proceedings being issued following an adjudication. Permission to appeal has been granted, given the significance of the decision.
HB (Wm) Ltd & Ors v Sto Ltd & Ors [2026] EWHC 1833 (TCC)
A further recent interim application decision in the Technology and Construction Court emphasised how the Court will approach the issue of liability owed to leaseholder/building owners by manufacturers under s.149 of the Act 2022 (Liability for Past Defaults). The case is notable for tackling the issue of BLOs that are targeted against companies domiciled outside of the jurisdiction.
The decision involved three sets of proceedings brought by different developers (Redrow, Lendlease, Barratt (the ‘Claimants’)) against three related companies (“Sto”) – i) Sto Limited (in administration) – a supplier and manufacturer of Sto products), ii) Sto SE & Co KGaA (supplier of ‘wall systems in bulk’ to Sto Limited) and iii) Stotmeister Beteilgungs GMBH (the majority shareholder in the second defendant, both domiciled in Germany. The first defendant is domiciled in Scotland and proceedings against it are stayed).
The Claimants had carried out or are in the process of carrying out remedial works to high-rise buildings with works funded by the UK Government’s Building Safety fund. Accepting that they are responsible for remediation costs in the first instance, the Claimants commenced proceedings against Sto by way of contribution on the grounds that Sto was responsible for the cladding. HHJ Moody highlighted the ‘Redrow’ set of proceedings – where the second and third defendants proceeded to make applications to set aside service out of the jurisdiction as well as an application to set aside an extension of time for service.
As mentioned, each of the substantive claims was brought under the Civil Liability (Contribution) Act 1978 on the grounds that the Defendants were liable to building owners for the ‘same damage’ within the meaning given by s. 1 of the Civil Liability (Contribution) Act 1978.
The underlying liability advanced against Sto included i) a liability for Sto Limited and Sto SE & Co KGaA to persons with a relevant interest pursuant to s.149 of the Building Safety Act 2022 and ii) a liability under section 130 of the Building Safety Act that it was ‘just and equitable’ for a BLO to be ordered against Sto SE & Co KGaA and Stotmeister Beteilgungs GMBH with respect to the liabilities of Sto Limited.
The decision is notable for its assessment of s.149 of the Act, which provides a cause of action for liabilities arising from cladding product installations. The first issue of note was whether permission to serve a claim form out of the jurisdiction was valid – that decision was upheld. The issue of significance, which was dealt with in some detail in the judgment, examined whether the claim against the second defendant pursuant to s.149 had real prospects of success. Given the absence of a successful product test compliant with BS8414-1 or BS8418-2, the Court concluded that there a real prospect of success were the claims to proceed to trial, the conclusions in Okpabi v Royal Dutch Shell Plc [2021] UKSC 3 being acknowledged.
Mr Justice Moody left open the question under s.1 of the Civil Liability (Contribution) Act 1978 as to whether same damage under a BLO could amount to ‘same damage and/or liability to the same person’ – as a matter that would need to be determined against the facts. The non-binding view that emerged from the judgment was that there was a realistic prospect of the same damage argument successfully engaging. Of significance was the Court’s treatment of extra-territoriality and relying on Cox v Ergo Versicherung [2014] UKSC 22, the Court was persuaded that the right approach was to determine the applicable law and that extra-territoriality had no relevance to the issues in question. The issue of whether an application to set aside time for an extension to service of the claim form against one of the Claimants was determined in line with Libyan Investment Authority v JP Morgan [2019] EWHC 1452 (Comm) and the application was refused. Contractors will make particular note of the indication given by the Court as to how recovery actions against third parties by way of contribution might be pursued through the Act.
The application of s.149 is important. Whilst this decision arises from an application to set aside service, the interim decision is indicative of the circumstances when a Court may be persuaded that the product in question was defective or that marketing of its material was misleading.
Summary
Both decisions are important and give direction as to how the Courts are interpreting and acting on cases reaching them on building safety matters. The ambition of bringing about remediation promptly is a clear theme as is efficient case management. The use of BLOs as part of that process and the application of s.149 of the Act are starting to become decisive tools in that process. The Crest Nicholson decision is open to appeal and, assuming the appeal is heard, some prospect remains that the Court of Appeal may take a different view on the use of BLOs in this instance.
The development of decisions with the intention of putting right building safety issues remains a constant tenet in these decisions. Contractors, insurers and construction industry organisations will wish to pay attention to the decisions and look, in particular, at the determination regarding s.149, which is likely to influence future approaches to building safety liability,
