Crest Nicholson Regeneration Limited & Ors v Ardmore Construction Limited (in Administration) & Ors [2026] EWHC 1069 (TCC)

[2026] EWHC 1069 (TCC)Case No HT-2022-000295
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 08/05/2026
Before
MR JUSTICE CONSTABLE
Between
(1) CREST NICHOLSON REGENERATION LIMITEDClaimants(2) CREST NICHOLSON (SOUTH) LIMITEDClaimant(3) CREST NICHOLSON OPERATIONS LIMITEDClaimant(4) CREST NICHOLSON PLCClaimant(1) ARDMORE CONSTRUCTION LIMITED (IN ADMINISTRATION)Defendants(2) DAVID RICHMOND AND PARTNERS LIMITEDDefendant(3) YUANDA (UK) CO. LIMITEDDefendant(4) ARDMORE CONSTRUCTION GROUP LIMITEDDefendant(5) ARDMORE GROUP LIMITEDDefendant(6) ARDMORE GROUP HOLDINGS LIMITEDDefendant(7) PADDINGTON CONSTRUTION LIMITEDDefendant(8) ARDMORE FITOUT LIMITEDDefendant(9) CELEBRATION HOMES LIMITEDDefendant(10) BYRNE PROPERTIES LIMITEDDefendant
Jonathan Selby KC and Harriet Di Francesco (instructed by Gateley Legal) for ClaimantSimon Hughes KC, James Frampton and Connie Trendle (instructed by Rosenblatt Law) for Fourth to Tenth DefendantsHearing Hearing date: 28 April 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 8 th May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE CONSTABLE

Introduction

[1]This judgment deals with matters consequential upon the determination of an application (‘the Application’) brought by the Claimants, Crest Nicholson Regeneration Ltd and associated group companies (‘Crest’) for building liability orders (‘BLOs’) pursuant to sections 130-131 of the Building Safety Act 2022 (‘BSA’) against the Fourth to Tenth Defendants (‘the BLO Defendants’). By a judgment handed down on 1 April 2026 [2026] EWHC 789 (TCC) (‘the Judgment’), the Court determined that it was just and equitable to order that(1) any liability or any liability of a specified description that the First Defendant (‘ACL’) may have to Crest under section 1 of the Defective Premises Act 1972 or as a result of a building safety risk is also the joint and several liability of each of the BLO Defendants (‘the Anticipatory BLO’); and(2) each of the BLO Defendants is jointly and severally liable for the sums owed by ACL to Crest under an adjudicator’s decision dated 29 August 2025 requiring ACL to pay Crest approximately £14.9m (‘the Adjudication BLO’).[2]The matters in issue are: i) permission to appeal, including certification for leapfrog to the Supreme Court; ii) the BLO Defendants’ application pursuant to CPR 83.7(4)(a) and (b) and/or CPR 52.16 for a stay of execution, alternatively pursuant to CPR 40.11 that additional time is given to satisfy payment of the Adjudication BLO; iii) whether Crest are entitled to claim interest; iv) whether there should be a deduction in the costs recoverable by Crest.

Permission to Appeal

[3]The relevant test is set out in CPR 52.6. Permission to appeal may be given where:
“(a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard.”
[4]The BLO Defendants rely upon both limbs, in respect of both the Anticipatory BLO and the Adjudication BLO on the following Grounds: Ground 1: the Court was wrong to decide that it was just and equitable to grant an anticipatory BLO (now). Ground 2: the Court was wrong to make an anticipatory BLO now while leaving to trial the question of what (if any) of the specified description of the relevant liability would be subject to a BLO. Ground 3: the Court was wrong to decide that the Adjudicator’s Decision gave rise to a relevant liability which could be subject to a BLO. Ground 4: the Court was wrong to decide that the BLO Defendants did not have a better than merely arguable case that the Adjudicator lacked jurisdiction. In particular, the Adjudicator did not have jurisdiction to decide that ACL was liable under the Defective Premises Act 1972 (the “DPA”). Ground 5: the Court was wrong to decide that it was just and equitable to grant a BLO in respect of the Adjudicator’s Decision.

Ground 1

[5]The BLO Defendants have no realistic prospect of success that the Court was wrong to grant an anticipatory BLO now because the threshold criteria that it was just and equitable to grant a BLO was not met. The grant of a BLO arises from the exercise of a broad discretion. It is well-established that there are limited circumstances in which an appellate court will interfere with the lower court’s exercise of discretion and the hurdle is a high one. The principles were summarised by Saini J in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB); 178 BMLR 38 at [50] to [52], and adopted by the Court of Appeal in ABP Technology Ltd v Voyetra Turtle Beach Inc [2022] EWCA Civ 594; [2022] ETMR 33 at [21]. Saini J stated: “50. An appellate court will only interfere with a discretionary evaluation where an appellant can identify one or more of the follows [sic] errors:(i) a misdirection in law;(ii) some procedural unfairness or irregularity;(iii) that the Judge took into account irrelevant matters;(iv) that the Judge failed to take account of relevant matters; or(v) that the Judge made a decision which was ‘plainly wrong’. 51. Error type (v) requires some elaboration. This means a decision which has exceeded the generous ambit within which reasonable disagreement is possible. 52. So, even if the appeal court would have preferred a different answer, unless the judge’s decision was plainly wrong, it will be left undisturbed. Using terms such as ‘perversity’ or ‘irrationality’ are merely likely to cause confusion. What is clear is that the hurdle for an appellant is a high one whenever a challenge is made to the outcome of a discretionary balancing exercise. The appellate court’s role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter. I would add that an appellate court is unlikely to be assisted in such challenges by a simple re-argument of the points made to the judge below. It needs to be underlined that an appellate court in an appeal such as the present is exercising a CPR 52.21(1) ‘review’ power. It is also well-established that the weight to be given to specific factors is a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge.” (i) a misdirection in law; (ii) some procedural unfairness or irregularity; (iii) that the Judge took into account irrelevant matters; (iv) that the Judge failed to take account of relevant matters; or (v) that the Judge made a decision which was ‘plainly wrong’.[6]As stated in terms in the BLO Defendants’ written submissions, they essentially repeat the factors and arguments they relied on at first instance. They do so without generally engaging in the reasoning of the Court or seeking to justify a submission that an attribution of weight was “wholly unjustifiable”. Taking the sub-points argued in writing at paragraph 26 of the written submissions: i) [26.1] The Court was not arguably wrong to take into account that it had “a high degree of confidence” that ACL is liable for a building safety risk in circumstances where (as made clear at [68] of the Judgment) key facts (6) (“there can be no real dispute that the Development contains building safety risks within the meaning of section 131(6) of the BSA” and (7) (“there can be no real doubt that ACL will be liable for those building safety risks”) were explicit propositions advanced by Crest and not disputed by Mr Hughes KC in argument. The Court relied upon the conclusions of ACL’s own erstwhile expert, and the absence of any other evidence advanced (either in the Adjudication or the Application) to gainsay those conclusions; ii) [26.2] The BLO Defendants merely repeat their submission that the specific purpose of the BSA was focussed on SPVs, notwithstanding the explicit acceptance in oral argument by Mr Hughes KC for the BLO Defendants that this was an overstatement and that “the policy intention was better described as one to allow those directly responsible for defective work to be pursued” (see paragraph [58] of the Judgment). The remainder of paragraph 26.2 does not address ‘purpose’ but elides argument with the ‘factual blameworthiness’ issue and, in substance, Ground 2; iii) [26.3] The BLO Defendants do not explain why the Court’s approach to the fact that Crest was a commercial developer was wholly unjustifiable, or, in particular, engage with the analysis of the ‘twin regimes’ set out at paragraph 87 of the Judgment from which it is clear that it is regularly going to be a (commercial) landlord or developer who has, either itself or through an associate, funded the remedial work and who will seek redress from the contractors, designers or others who caused building safety defects. The argument that Crest should not be entitled to a BLO because they are liable under the DPA in respect of the same defects was not advanced during argument. It is in any event wrong and contrary to the purpose of the BSA which is to provide “effective routes to redress against those responsible for historical building safety defects that have only recently come to light, whatever level of the supply chain they operated at” (see the words of Lords Hamblen and Burrows in BDW Trading Limited v URS Corporation Ltd [2025] UKSC 21; [2025] 2 WLR 1095 quoted at [42] of the Judgment). At best this is a restatement of the ‘factual blameworthiness’ point and, in substance, Ground 2. iv) [26.4] This is a repeat of the new point re the DPA folded into a repetition of the comparative profits point. The BLO Defendants do not engage with the Judgment’s identification of the bizarre outcome which follows from their argument, namely that commercially unsuccessful builders would be able to avoid the application of the BSA, whilst commercially successful ones would not. v) [26.5] The point about uncertainty of the amount of the BLO directly challenges in substance not just the Judgment, but also the decision of Jefford J in Click St Andrews. If correct, it has the practical effect that – notwithstanding the BLO Defendants’ acceptance that the Court has jurisdiction to order an anticipatory BLO – there can never be a BLO prior to the establishment of liability and quantum after a full trial. Reliance on Hansard was not argued during the application, and the BLO Defendants do not attempt to justify its admissibility by reference to Pepper v Hart [1993] 1 All ER 42. In any event, the BLO Defendants simply do not engage with the process adopted by the Court which was to consider the just and equitable test at the point of making the order on an assumed worst case outcome following trial (i.e. facts which gave the BLO Defendants their ‘best’ case to argue that an order was not just and equitable), which deals squarely with what boils down to a prematurity point. It is notable that there is no appeal against the Court’s adoption of the reasoning of the FTT in Triathlon, upheld by the Court of Appeal, that it will be an unusual case in which the source or extent of a respondent’s assets or liabilities will carry much weight (then in the context of a remediation contribution order). vi) [26.6-26.8] The complaints about taking account of factual blameworthiness and other equivalent points comes down to Ground 2. vii) [26.9-26.10] The complaints about the factual disputes and/or allegedly inadequate disclosure ignore the explanation that in substance these did not add to the other grounds which had been considered (e.g. factual blameworthiness etc). viii) [26.11] As with its initial submissions, the BLO Defendants do not explain why their liability on other projects would be relevant to its liability for this project, and therefore do not engage with the conclusion of the Court.[7]There is therefore no real prospect of demonstrating that the exercise of discretion was plainly wrong.

Ground 2

[8]The BLO Defendants contend that they have a realistic prospect in arguing that the Court has no jurisdiction to make a two-stage BLO order. It was accepted by Mr Hughes KC that this amounted to a challenge to the approach of Jefford J in Click St Andrews as well as the Judgment. Mr Hughes KC also accepted that his argument meant in practice that there would never be such a thing as an Anticipatory BLO, even though he does not appeal the Court’s adoption of HHJ Keyser KC’s analysis in BDW Trading Ltd v Ardmore Construction Ltd [2025] 1.W.L.R. 3101 that the Court has jurisdiction to make such an order. There is no real prospect in arguing that the statute gave jurisdiction to the Court to make an order that, in practical terms, could never amount to a just and equitable one. It is also notable in this context that Mr Hughes KC does not seek to appeal the conclusion of the Court (building upon HHJ Keyser KC’s analysis in BDW Trading Ltd) that there is good reason why the statute provides jurisdiction for the making of an anticipatory BLO. The burden of proof point argued at paragraph 30.2 was not argued before the Court, but is not in any event a necessary consequence of the approach.[9]Moreover, the point would not (if allowed) upset the making of the Anticipatory BLO, as the Court explicitly recognised at [112] of the Judgment (a decision which Ardmore does not seek to appeal).

Ground 3

[10]It is not reasonably arguable that the Court was wrong to decide that the Adjudicator’s Decision gave rise to a relevant liability. The submissions appear to accept that the Adjudicator’s Decision created a liability upon ACL, the original body. The submission does not therefore engage with the fact that such liability is the trigger for the transmission of that liability (providing it is just and equitable) to the associate. That the liability may cease to be a liability at some later stage does not arguably negate the fact that such a liability exists at the point of making the BLO, thus satisfying the statutory jurisdiction to make such an order (if just and equitable to do so). Its ‘interim’ status may be a factor in the exercise of discretion but does not deprive the Court of the jurisdiction. The BLO Defendants do not engage with the Court’s reasoning as to why it would be surprising if the statutory schemes for BLOs and adjudication were mutually exclusive, without this being expressly determined by defining the word ‘liability’ accordingly (and more narrowly than its natural meaning) within the BSA.

Ground 4

[11]There is not a real prospect of success in arguing that the Adjudicator did not have jurisdiction to decide that ACL was liable under the DPA. The Court recognises that the Court agreed with the reasoning of Joanna Smith J in BDW Trading v Ardmore Construction Limited [2024] EWHC 3235 (TCC), but in addition it dealt fully with the ‘Hansard’ point that was, potentially, left hanging in that case. It also recognises that by an order dated 11 February 2025, Coulson LJ granted permission to appeal the judgment in BDW Trading v Ardmore Construction Limited (although it is noted that Coulson LJ said “the judge may well have been right to reach the conclusion that she did. That would, I think, have been my instinctive answer to the question.”)[12]However, this issue has now been determined in the same way by two High Court Judges. This weighs against granting permission. Whilst recognising that the Court of Appeal may remain of the view expressed, that is a matter best left to the Court of Appeal.

Ground 5

[13]This ground again seeks to challenge the exercise of discretion and has no real prospect for the equivalent reasons stated for Ground 1.

Compelling Reasons

[14]This Court is plainly aware of the potential significance of both the Anticipatory BLO and Adjudication BLO points this case has given rise to. However, whether that amounts to a compelling reason for the appeal in circumstances where, for the reasons given, there is no real prospect of success is a matter best considered by the Court of Appeal. In these circumstances, and for the same reasons, it would not be appropriate to certify this as a matter suitable for appeal direct to the Supreme Court. This is particularly so in circumstances where in Triathlon, the Supreme Court refused permission to appeal in relation to the application of the just and equitable test (in the context of remediation contribution orders).

The Application for a Stay

[15]In the circumstances set out above, the relevant application made by the BLO Defendants falls to be considered under CPR 83.7. The Court can exercise its discretion to grant a stay if the applicant is unable from any reason to pay the money. The Law[16]As to stays of execution generally, the White Book states at paragraph 83.7.1 on page 2471:
“In any application for a stay of execution the starting point is that there has to be a good reason to deny the judgment creditor the immediate fruits of the judgment (Winchester Cigarette Machinery Ltd v Payne (No.2), The Times, 15 December 1993). A case much relied upon is that of Alliance & Leicester Building Society v Slayford [2000] EWCA Civ 257, which deals with the balance to be struck between creditor and debtor, effectively concluding that any deferred period of payment must be reasonable.”
[17]Where the judgment sum relates to an adjudicator’s decision, relevant guidance is provided in Wimbledon Construction Co 2000 Ltd v Vago [2005] EWHC 1086 (TCC); [2005] BLR 374 at [26]:
“a) Adjudication (whether pursuant to the 1996 Act or the consequential amendments to the standard forms of building and engineering contracts) is designed to be a quick and inexpensive method of arriving at a temporary result in a construction dispute. b) In consequence, adjudicators' decisions are intended to be enforced summarily and the claimant (being the successful party in the adjudication) should not generally be kept out of its money. c) In an application to stay the execution of summary judgment arising out of an adjudicator's decision, the Court must exercise its discretion under Order 47 with considerations a) and b) firmly in mind…”
[18]It might be noted that Wimbledon v Vago and many other authorities dealing with stays in the context of adjudication enforcement relate to the potential injustice that may arise from the potentially interim nature of an adjudication decision and the ability of the receiving party to repay sums if required to at a later stage. No such issue arises in the present case.[19]In Andrew v Flywheel IT Services Ltd [2021] EWHC 2746 (Comm) (a case concerning an application for a stay of execution under CPR 83.7(4)(b) albeit not in relation to the payment of an adjudicator’s decision), HHJ Pelling QC (sitting as a

Judge of the High Court) confirmed by reference to the relevant authorities that:

“(1) The burden is on an applicant to show that it is unable to pay, including that no funds would be made available to it including by its owner (at paragraph [11]): “…where this ground is relied on the onus rests firmly on the applying party, here the Defendant, to make good that case. Further, it was not in dispute that Lord Wilson JSC's dictum in Goldtrail Travel Limited (in liquidation) v Onur Air Tasimacilik AS [2017] UKSC 57, [2017] 1 WLR 3014, at [23] to [24] applies by analogy. As Lord Wilson JSC said in those paragraphs: “In this context the criterion is: ‘Has the appellant company established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition?’ “… In cases … in which the respondent to the appeal suggests that the necessary funds would be made available to the company by, say, its owner, the court can expect to receive an emphatic refutation of the suggestion both by the company and, perhaps in particular, by the owner. The court should therefore not take the refutation at face value. It should judge the probable availability of the funds by reference to the underlying realities of the company’s financial position; and by reference to all aspects of its relationship its owner with, including, obviously, the extent to which he is directing (and has directed) its affairs and is supporting (and has supported) it in financial terms.” (2) Even if the Court is satisfied that the applicant is unable to pay, it must still consider its discretion as to whether to grant the stay sought (at paragraph [12]). (3) A no-set off clause is a strong factor in the discretionary exercise.” “In this context the criterion is: ‘Has the appellant company established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition?’ “… In cases … in which the respondent to the appeal suggests that the necessary funds would be made available to the company by, say, its owner, the court can expect to receive an emphatic refutation of the suggestion both by the company and, perhaps in particular, by the owner. The court should therefore not take the refutation at face value. It should judge the probable availability of the funds by reference to the underlying realities of the company’s financial position; and by reference to all aspects of its relationship its owner with, including, obviously, the extent to which he is directing (and has directed) its affairs and is supporting (and has supported) it in financial terms.”
[20]In Bewley Homes plc v CNM Estates (Surbiton) Ltd [2010] EWHC 2619 (TCC); [2011] BLR 67 where the claimant was seeking to obtain summary judgment (and enforcement of such judgment) in respect of a settlement agreement settling, inter alia, liability of sums due under an adjudication decision, Akenhead J, having granted summary judgment then had to consider an application for a stay of execution of that judgment. He said, at paragraph [33]:
“It is then suggested that the Court can exercise its discretion under RSC Order 47 to stay execution where, in this case, CNM can not pay. In commercial cases, such as this, it must be rare and exceptional for the Court to stay execution of a judgement sum because the defendant cannot pay. If it was at all common, impecunious defendants, who defaulted on their payment obligations, could always avoid having to pay through the exercise of this discretion and defendants would never go into liquidation.”
[21]J&B Hopkins Ltd v A&V Building Solution Ltd [2023] EWHC 2475 (TCC) concerned an application for a stay of execution by the defendant (A&V) in respect of an adjudicator’s decision in favour of the claimant (J&BH). Having referred to the relevant authorities (including the passages in Andrew v Flywheel and Bewley Homes referred to above), Roger Ter Haar KC, sitting as a Deputy High Court Judge, drew a number of conclusions including the following:
“(4) Once summary judgment has been granted, there is a strong presumption against a stay of execution being granted, not only as a matter of general policy in all cases where judgment has been entered, but particularly in judgments enforcing adjudicators’ decisions where the policy of the Courts, giving effect to the intention of Parliament, is to apply the principle “pay now, argue later”; (5) That presumption is, if anything, stronger where the disputing parties are commercial entities; (6) However, the Court has a discretionary power to order a stay of execution of judgments enforcing adjudicators’ decisions in cases falling within CPR 83.7 particularly where the enforcement of the summary judgment might or would cause manifest injustice. (7) An applicant for a stay of execution relying upon its parlous financial situation so as to fall within CPR 83.7(b) does not have to establish that its financial situation is the result of any act or omission on the part of the judgment creditor, but, it seems to me, its position will be stronger if it does demonstrate that link, particularly if it can be shown that that act or omission was a breach of contract.”
[22]J&B Hopkins Ltd was, in the words of the learned Deputy, “one of those cases where the Court should, exceptionally, grant a stay of execution”. The Judge had found it “clear beyond doubt that A&V itself cannot afford to pay”, and then turned, in accordance with the authorities, to look at those standing behind the company. He concluded that family and friends had made loans to A&V, which source had dried up, and that the owner had exhausted all other obvious sources of finance. There was therefore an inability to pay. Matters then specifically weighing in favour of the exceptional exercise of discretion in that case included that(1) it had been ruled by the Court of Appeal that J&BH, in breach of contract, had failed to pay A&V in respect of an earlier adjudicator’s decision,(2) that such non-payment by J&BH had exacerbated A&V’s financial difficulties;(3) thus, that J&BH was seeking to insist upon a ‘pay now, argue later’ which J&BH itself had refused to honour;(4) it was arguable that the second adjudicator’s decision was wrong and(5) the consequence of execution of the judgment would probably be an order winding up A&V, effectively preventing it from pursuing its claim which he had held to be arguable.

Inability to pay

[23]Applying these principles, the first question is whether the BLO Defendants have established an inability to pay, not just by reason of funds available to it but whether by their ultimate owner or by some other closely associated person.[24]The financial position of the BLO Defendants was considered as part of the Application, by reference to the information made available to the Court. At paragraph [202] of the Judgment, which is set out here for convenience, the Court concluded:
“The short point made by Mr Selby KC is that the documents provided by the BLO Defendants do not support the proposition that ordering the Adjudication BLO would ‘present profound problems’. I conclude on the basis of the documentary evidence that there is considerable reason to be sceptical of this evidence by Mr Horne. This is particularly so in light of the complete absence of transparency about the financial status of AGHL, together with the intercompany loans. The BLO Defendants have chosen not to provide obviously relevant financial information pertaining to AGHL (and notwithstanding notice of the concerns provided in respect of this lack of transparency in advance of the hearing). It is also notable that the language chosen by Mr Horne does not suggest that making the Adjudication BLO would cause an existential threat to the Group. Taking the evidence at its highest, the BLO is likely at most to impact short-term decisions about entering new contracts (the detail of which is exceptionally vague) and only to the extent that entering such contracts require a performance bond (rather than, for example, a parent guarantee from AGHL). It is also surprising that Mr Byrne has not chosen to put his name to any equivalent assertion, given his centrality to important issues in dispute and, as Mr Selby KC submitted, all roads ultimately lead back to him.”
[25]In support of the application to stay, the BLO Defendants served two further statements from Mr Horne.[26]In his Third Witness Statement, dated 10 April 2026, Mr Horne explained that, by reference to the Q1 management accounts for the Ardmore Group (consolidated for AGL and those companies below, as per the group structure at paragraph [22] of the Judgment), that the Group made a net profit of £5.149m in the period from 1 October 2025 to 31 December 2025. The Group owns commercial and residential properties with an aggregate carrying value of c. £59m. 31 of the 47 properties are subject to charges in the sum of c. £25m, so there is around £34m in unencumbered net property. The group’s net asset position was stated to be, as at the end of December 2025, £38.9m, including a provision for non-current liabilities of £34.4m in relation, it is said, for future loss-making contracts. The net position excluding non-current liabilities therefore significantly exceeds the current liability in respect of the judgment sum.[27]Mr Horne appends to his Third Witness Statement an updated cash flow, dated 6 April 2026 which fluctuates between £1.3m and £31.3m. The figures are markedly different to the cashflow forecast dated approximately a month earlier, dated 27 February 2026, which had been appended to Mr Horne’s Second Witness Statement, and from the figures used in the management accounts, dated 13 March 2026, appended to the Third Statement. By way of example the position at the end of March 2026 (either 30 or 31) was said to be £13.5m in the 27 February 2026 forecast, £1.5m in the March Management Accounts, and £31.2m in the 6 April forecast. There is no explanation of how the forecasts are made or why there is such considerable variation from one set of figures to the next. Given the extent of variability and lack of explanation, they provide little substantiation on their own for the asserted inability to pay.[28]In his Third Witness Statement Mr Horne described a (then) anticipated £10m loan to be secured against circa £16m worth of property, representing a loan to value (‘LTV’) of 62.5%. Mr Horne asserted that this £10m was included in the forecast figures and required to meet its cashflow requirements over the next 3 to 4 months. There was no transparency as to where in the forecast the anticipated £10m was factored in, and Mr Hughes KC was unable to help. On its face, this would suggest a further £18m of unencumbered property, which would if subjected to a charge at the same LTV might raise a loan of £11.25m, a very considerable proportion of the judgment sum.[29]Mr Horne’s Fourth Witness Statement was dated 22 April 2026, just 12 days later. The position had changed significantly, it being asserted (with no supporting documents) that the Group had secured a provisional term sheet for a facility of £18.3m but secured against “all property assets”, said now to have a book value of £43m. It is not clear how this value relates to the £59m valuation of all properties referred to in the Third Witness Statement. Both statements appear to refer to ‘all’ properties, yet the value has plummeted by £16m. In any event, Mr Horne asserts that the facility is based on the lender’s own valuation (not evidenced) of £35m at an LTV of 65%. He does not explain why the facility is for only £18.3m when 65% of £35m is £22.75m, a difference of £4.45m. Mr Hughes KC’s skeleton suggests that the delta may be the result of interest retention and fees, but there is no evidence(a) to this effect or(b) as to why negotiating a loan with an interest retention requirement is appropriate or necessary. Mr Horne then explains that £4.6m is required to release an existing charge, so it reflects in reality a loan available to use of £13.7m.[30]What is left wholly unexplained is how or why the Group has, seemingly, negotiated a significantly worse facility than that which he anticipated just 12 days earlier (i.e. obtaining £10m cash charged against £16m of property, leaving £18m of property unencumbered versus obtaining just £13.7m cash charged on all property, whether valued at £35m, £43m or £59m, leaving nothing unencumbered). Moreover, the cash forecast position referred to by Mr Horne in his First and Second Witness statements (as at 27 February 2026) was always positive (between £2.9m and £8.3m) throughout (ending 31 July) without the inclusion of a £10m loan Mr Horne now says is now required for general working capital. He does not explain how or why the working capital requirements of the business have apparently deteriorated so fundamentally in the space of a few weeks. On the assumption that they have not, then a loan of the type anticipated by Mr Horne in his Third Statement on 10 April 2026, but charged against all property then said to be unencumbered (i.e. a facility of 62.5% of £34m) would generate a sum significantly in excess of the judgment sum. Indeed, this is consistent with the fact that in his Second Witness Statement, Mr Horne then identified a predicted charge of £25.3m against property in order to facilitate a bond in relation to a project which has not, in fact, come to pass (no reference to the need for such a facility is referred to in the Third and Fourth Statements). Repurposing that predicted charge would of itself be more than enough to pay the judgment sum.[31]Mr Horne then refers in his Fourth Statement to an ‘updated cashflow’ at paragraph 9. The updated cashflow itself is not provided. It is said on the basis of the updated cashflow that ‘the top line’ of what the BLO Defendants could afford to pay was an initial lump sum of £2m and £500,000 per month. Even this on its face makes little sense: 12 days earlier only £10m (more) was required for working capital, and the cashflow forecast consistently showed a cash position significantly in excess of £500,000 each month. On the basis of the ‘new’ facility, there would be at least an additional £3.7m immediately (£13.7m v. £10m), with £500,000 payment readily accommodated within the existing cashflow forecasts (indeed, £1m a month could be accommodated on the face of the 6 April 2026 cashflow forecast without becoming negative at any point).[32]The very significant variation in what Mr Horne has asserted from one statement to another in terms of working capital requirements, cashflow, property valuations and the extent to which a facility would be available is deeply unsatisfactory and leaves the Court, once again, entirely sceptical about his evidence. I am left in no doubt that the financial information, changing explanations and lack of supporting documentation fall significantly below the robust and coherent financial picture required to evidence Mr Horne’s assertions that the Group has no immediate ability to pay or that in the event that the Group is ordered to pay the amount of the Adjudication BLO, ‘it is almost inevitable that the BLO Defendants will have to enter insolvency proceedings’.[33]However, even if I were wrong about that, there is no evidence at all from ‘some other closely associated person’ i.e. Cormac Byrne. Whilst a short statement from a Mr Murphy deals briefly with what he describes as ‘the Byrne Settlement’, this does not begin to meet the point that Cormac Byrne is the common denominator across the Group, and his own reported (and not refuted) personal fortune(a) is the fruit of the Ardmore Group and such other investments Mr Byrne has thereby been able to make and(b) is (significantly) more than sufficient to enable the Group to continue trading notwithstanding the BLO Defendants’ obligation to pay the judgment sum. This is, alone, sufficient to answer in the negative the critical question, namely whether the BLO Defendants have established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the Judgment.

Discretion

[34]The question of discretion does not arise in circumstances where the BLO Defendants have failed to establish that they are unable to pay.[35]However, even if I had considered otherwise, I would not order a stay of execution. There are simply no additional factors (such as there were in J&B Hopkins Ltd) to make the present case one of the exceptional ones where the ordinary position should be departed from. Time to Pay

The Law

[36]The general rule pursuant to CPR r. 40.11 is that a party “must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order”.[37]The Court has a discretion to order otherwise (including by specifying payment by instalments: CPR r. 40.11(a)).[38]As to the exercise of that discretion, the principles which apply are summarised in two judgments of Akenhead J. In Gipping Construction Limited v Eaves Limited [2008] EWHC 3134 (TCC) at [11] he said:
“It is unlikely that mere inability to pay will suffice to justify the extension of the normal fourteen day period; usually, inability to pay is no defence and an insolvent debtor must take the usual consequences of its insolvency.”
[39]In Yoram Amsalem (trading as MRE Building Contractors) v Hugh Mark Raivid & Anor [2008] EWHC 3226 (TCC) at [6] to [7], Akenhead J said:
“6. …The introductory notes to CPR Part 70 say this: ‘It is a feature of civil justice that the court does not automatically enforce its judgments, nor even decide how they should be enforced. It is up to the judgment creditor.’ In broad terms, that does reflect the law and the practice. Part 70, and those provisions of the Rules of the Supreme Court which were retained by that Part, give a wide variety of different methods to a successful party to litigation for enforcing judgments. That can include the appointment of a Receiver, third party debt orders, charging orders, stop orders, stop notices, and other writs of execution such as a writ of fieri facias. … 7. Parliament has given a successful judgment creditor those rights and it should be an exceptional case, it seems to me, where the court interferes with those rights given by Parliament.”
[40]Akenhead J’s judgments were cited with approval by Field J in Gulf International Bank v Al Ittefaq Steel Products Co & Ors [2010] EWHC 2601 (QB) at [17] and [19]. At [22] to [24], Field J stated:
“22. In my opinion, Akenhead J’s observation that inability to pay will usually not justify a pre-execution extension of time, with an insolvent debtor having to take the usual consequences of his or its insolvency, applies a fortiori where the parties are business entities. 23. Where the debtor is in a parlous financial situation, the interests of other creditors of the debtor and possibly those of the debtor’s workforce and suppliers will be engaged. But since this country’s bankruptcy and winding-up regimes are designed to take account of these interests, and are supervised by specialist courts, these third party interests will, in my opinion, only very rarely, if at all, be a justification for an extension of time under CPR 14.10 or 40.11 where the debtor is liable to be wound up or made bankrupt within the jurisdiction. 24. It follows that, in the ordinary way, this court will only exceptionally extend time under CPR 14.10 and 40.11 and then only where the judgment debtor is solvent and for relatively short periods of time and after which the whole judgment debt will become payable. Further, in reaching its decision, the court will give careful consideration as to whether some provision in respect of interest ought to be made in light of the fact that the judgment debtor will be being kept out of his money for the period of the extension.”

Application

[41]Had I been persuaded by Mr Horne’s evidence, this would not on the basis of the authorities have been a basis to permit time to pay other than in accordance with the usual 14 days. Were insolvency impending, the debtor must face the usual consequences of that impending fact.[42]For reasons I have explained in the context of the application for a stay of execution, I do not consider that the BLO Defendants have demonstrated any inability to pay. For the same reasons, I am unpersuaded that there are any exceptional facts which might render it appropriate to permit the BLO Defendants additional time to pay, let alone to sanction their unrealistic proposal based upon an unsecured monthly payment regime stretching long into the future. This is not the sort of ‘time to pay’ contemplated as appropriate in the authorities.

Conclusion

[43]In the circumstances, there should be no stay of execution nor an extended time to pay. Whilst it is right that by virtue of the date of the hearing of consequentials and the reservation of this judgment, the BLO Defendants have already had more than the ordinary 14 days, it would not be right to abridge that ordinary period from the date of order, as Mr Selby KC requested. The BLO Defendants must pay in accordance with the Adjudication BLO within 14 days from the date this judgment is formally handed down.

Interest

[44]Crest seeks interest on the sums awarded in respect of the Adjudicator’s Decision at 5% from 5 September 2025 to date. Mr Frampton, on behalf of the BLO Defendants, argued that Crest is not entitled to interest on the basis that: i) the application for a BLO did not seek any interest (although he accepted that there is a pleaded claim for interest); ii) more fundamentally, there was nothing due from the BLO Defendants until a BLO was made. If Crest was to seek interest from 5 September 2025 it would effectively be interest due from ACL on which Crest would need to apply for a BLO. Crest has not done so.[45]As to the first point, it is not fatal to Crest’s claim for interest that it was not included in the application as originally issued. It is not suggested that there was any prejudice caused by, in effect, applying for interest as part of the consequentials. If authority were needed for such an orthodox analysis, that may, as identified by Ms Di Francesco for Crest, be found at least by analogy in the judgment of HHJ Stephen Davies in Zagora Management Ltd v Zurich Insurance plc [2019] EWHC 205 (TCC); 182 ConLR 240 at [29] to [31]. In that case, the Court allowed a claim for interest even though it had not been properly pleaded or pursued at trial.[46]As to the substantive objection, the submission ignores the fact that the purpose of interest is to compensate a claimant for being kept out of their money: see Tate & Lyle v Greater London Council [1982] 1 WLR 149 at page 154. Any of the BLO Defendants could have paid Crest money at any time from the production of the Adjudicator’s Decision (and the BLO Defendants were aware of Crest’s intention to claim against them if ACL were not able to pay since March 2025 i.e. before the Adjudication). A separate BLO is not required to claim interest: the BLO attaches to the liability of ACL and that liability includes interest arising out of the non-payment of the Adjudicator’s decision.[47]Alternatively, Mr Frampton argued that, as part of the Court’s discretion, it should only award interest for sums which have shown to be incurred. It is said that Crest has provided no evidence of its incurred costs (either the substantive cost of the remedial works or that it has paid the Adjudicator’s fees), and that as such there is no reason for the Court to exercise its discretionary power to order payment of interest for sums which have not been (or not been shown to be) incurred. Such interest would amount to an unjustified windfall for Crest. However, as submitted by Ms Di Francesco, and not disputed by Mr Frampton, on the Court’s findings, the sum due under the BLO is a debt, not damages: see [130] to [139] of the Judgment. On this basis, whether costs were incurred would not be relevant. In any event, whilst the question of the incurrence of costs may have been relevant to the Adjudicator in respect of the period up to the Adjudication itself, the interest sought by Crest now is to compensate having not been paid the money to which it was undoubtedly entitled by reason of the Adjudicator’s Decision. Whether the principal sum represents previously incurred costs, or costs to be incurred, is not relevant to whether Crest should be entitled to interest in light of ACL’s (and/or the BLO Defendants’) non-payment of the Adjudication Decision. They should.[48]There is no dispute about the rate.

Costs

[49]Mr Frampton, unsurprisingly, accepts that the general rule is that costs should follow the event (see CPR 44.2(2)) and that Crest was successful. He argues, however, that Crest’s costs should be subject to a reduction of 10% to reflect the BLO Defendants’ success on the “specified description” dealt with by the Court at [105] to [112] of the Judgment. However, his characterisation of success is, in my judgment, overstated in circumstances where Mr Hughes KC argued that the Court could not or should not make an order which left to trial the question of what (if any) of the specified description of the relevant liability should be subject to a BLO (indeed, this point is Ground 2 of the application for permission to appeal). The only point upon which the BLO Defendants succeeded was whether in principle a Court may transmit some, rather than all, liability when making a BLO. In the context of the Application as a whole, victory on this minor (at least in terms of time consumed) point should not displace the general rule that costs follow the event. Accordingly, Crest should be awarded 100% of their costs, to be assessed if not agreed.