Adjudication and the Building Safety Act: A view from 2026

This article was prepared for Adjudication Society Newsletter

Following BDW v Ardmore [2024] EWHC 3235, the Courts have confirmed that disputes arising under the Defective Premises Act 1972 (“DPA“) and the BSA can be determined by adjudication. This decision is greatly significant and will almost certainly lead to many more building safety claims proceeding through adjudication in the first instance, as parties seek to avoid the time and cost commitments of determining claims through lengthy Court proceedings. In particular, parties may now be more willing to adjudicate historic building safety claims, on the basis that ordinary Court proceedings remain open to them in the event of an unfavourable adjudication decision. Alternatively, a positive adjudication decision may remove the need for Court proceedings at all, potentially resulting in huge costs savings.

This article will examine some of the key recent judicial decisions concerning the application and scope of the BSA, and, with these decisions in mind, discuss where adjudication fits into the litigator’s arsenal.

Can voluntarily incurred costs be recovered? URS v BDW [2025] UKSC 21

In URS v BDW the Supreme Court provided its first major decision on the effect of the BSA on claims brought under the DPA.

As many will be aware, under the DPA, a person building or refurbishing a dwelling owes a duty to ensure that the completed property is “fit for habitation” upon completion. Prior to the BSA, limitation in respect of DPA claims would run for 6 years from the completion of the relevant property. However, following the BSA, a retrospective 30-year limitation period has been imposed in relation to DPA claims for all dwellings completed prior to the BSA coming into force. For all dwellings completed following the implementation of the BSA, a 15-year limitation period will apply.

This claim concerned two high-rise residential blocks, comprising residential units, developed by BDW between 2007 – 2012. URS was the structural engineer. BDW sold the individual units following completion, and had no remaining proprietary interests in the developments by 2015. However, following the Grenfell fire tragedy in 2017, BDW discovered a series of serious structural defects in the developments.

BDW subsequently chose to carry out remedial works in 2020, despite no longer having any interest in the developments, and despite the fact that it didn’t face any live legal claims from the current owners of the units (or any other interested party).

BDW sought to recover the cost of the remedial works against URS by way of a DPA claim, on the basis that URS was said to bear responsibility for the structural defects. URS argued that it had no liability, as BDW had incurred the cost of the remedial works voluntarily – i.e. in circumstances where it was not strictly required to carry out those works. Alternatively, URS argued that the DPA duty was only owed to homeowners, rather than developers, such that BDW had no standing to initiate a DPA claim.

The Supreme Court rejected URS’ defence, finding that it was appropriate for BDW to act where there was a clear risk of injury to the inhabitants of the developments, and a corresponding exposure to future claims – even where none had been brought to date. Furthermore, it was reasonable for BDW to take proactive steps to remediate the developments, in order to protect its commercial reputation. Furthermore, the Court confirmed that the DPA duty is owed to developers (such as BDW) in addition to those who acquire a proprietary interest in a dwelling. As a consequence, the Court found that URS was liable to BDW, and awarded the costs of the remedial works.

How do adjudication awards relate to Building Liability Orders? Crest Nicholson v Ardmore [2026] EWHC 789

Building Liability Orders (“BLOs“) were introduced for the first time by way of section 130 of the BSA. In short, the BLO regime is intended to prevent large companies from being able to restrict liability through the use of SPVs in construction projects. Under the SPV procurement model, the profits accrued through the project would ordinarily pass from the SPV to another group company, which would not have any contractual links with any of the parties to the project. The application of the “corporate veil” principle in English law would then prevent a claimant from seeking to hold one limited liability company liable for the actions of a distinct limited liability company. The result would be that – in the absence of a parent company guarantee – there would be no obvious way to enforce a claim against an SPV which held no assets.

To address the perceived injustice described above, a BLO may be obtained in circumstances where a “relevant liability” is proven against one company, which is associated with the company against whom the BLO sought. A “relevant liability” is defined as a liability arising either under the DPA or section 38 of the Building Act 1984, or in respect of a risk to the safety of people caused by the spread of fire or structural failure.  The effect of a BLO is a binding declaration that the liability of the original defendant company is also the liability of the associated company. The BSA additionally provides that the Court may make a BLO where it considers it “just and equitable” to do so.

In Crest Nicholson v Ardmore, Crest had developed a large residential scheme between 2007 – 2009. Ardmore were appointed as the contractor. Following Grenfell, serious fire safety defects were discovered in the external wall of the building. Crest subsequently adjudicated against Ardmore and were awarded £14.9m by the Adjudicator. However, Ardmore went into administration the day prior to the Adjudicator issuing their decision.

Crest therefore sought an “adjudication award BLO” and an “anticipatory BLO” against a series of companies associated with Ardmore, seeking an order that they be held jointly and severally liable for (i) the liability of Ardmore as established by the Adjudicator (£14.9m), and (ii) the liability of Ardmore as may ultimately be found by the Court.

The Court awarded both BLO’s sought, finding that the Adjudicator’s decision constituted a “relevant liability” for the purposes of section 130 of the BSA. Given that Ardmore had no means to satisfy the Adjudicator’s judgment against it, and having regard to the fact that the group companies met the association test set out at section 131 of the BSA, it was just and equitable to grant both the adjudication award BLO, and the anticipatory BLO. As a consequence, the group companies were required to comply with the Adjudicator’s decision, and make payment to Crest. Furthermore, those same companies would be subject to the Court’s ultimate decision regarding the liability of Ardmore to Crest, following the determination of the Court proceedings.

Discussion

One of the central purposes of the BSA is to ensure that those responsible for unsafe buildings are held to account. This objective is achieved in part through the retrospective extension of limitation periods for DPA claims, and the creation of BLOs. However, we now have several examples in which the Courts have demonstrated willingness not only to use the new powers set out in the BSA, but to read the legislation purposively, in order to expand the scope of the statutory remedies. For instance, in URS v BDW it was open to the Court to adopt a restrictive interpretation of the DPA, and therefore to find that voluntarily incurred costs were non-recoverable. The fact that the Court decided to take the opposite approach demonstrates a willingness to support the underlying public policy objective of encouraging developers to pro-actively remediate unsafe buildings. Similarly, following the Crest v Ardmore decision, it is clear that an adjudicator’s decision can in principle constitute a “relevant liability” for the purposes of obtaining a BLO against a company associated with the original defendant.

In this context, I would expect more building safety claims to emerge in relation both recent claims, given the new remedies available to potential claimants, and historic projects which are now back within limitation under the DPA. It remains to be seen whether the Courts will continue to read the remedies set out under the BSA expansively, effectively encouraging more claims, or whether a course-correction is due. In the meantime, it is crucial that parties understand the new causes of action set out under the BSA, and the current claimant-friendly approach of the Courts in interpreting the legislation.