Service pages: building safety

Who can, and cannot, refer a construction dispute to adjudication?

  • 14 April 2026
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In a couple of cases from the first quarter of this year, the TCC handed down judgments providing guidance on the range of parties to which adjudication would be available: 

  1. In Paragon Group Ltd v FK Facades Ltd [2026] EWHC 78 (TCC), the HHJ Stephen Davies held that an entity to which the employer had assigned the benefit of the building contract was entitled to refer a dispute to adjudication; and
  2. In Darchem Engineering Ltd v Bouygues Travaux Publics and another [2026] EWHC 220 (TCC), Mr Justice Constable held that a constituent partner of an unincorporated joint venture (“JV”) was not entitled to refer a dispute to adjudication on its own, without the other partner(s) of the JV also being involved. 

While each case turned on the interpretation of “Party” under the relevant contracts (and the Scheme for Construction Contracts) in the context of those particular contracts, they nevertheless provide a useful practical indication of the circumstances in which an assignee or a lone JV partner will be able to adjudicate. Further, the terms in question are fairly common and so, in the many instances where the terms used are similar or the same as in these cases, contracting parties can look to the cases to understand whether they might have the right to adjudicate.

Assignees

In Paragon v FK Facades, it was held that, while the contract defined “Party” as “either the Employer or the Contractor“, that must be considered in the context of a clause of the contract that expressly permitted the employer to assign the contract. Given that clause, and the assumed knowledge of the general law of contract and assignment, the judge held that: 

  1. the contract could be read as if the words “or any legal assignee of such party, where applicable” are included in the definition of “Party”; and
  2. the same words could also be read into the definition of “party” in the Scheme without doing violence to the wording of the Scheme.

As such, the assignee was considered a “Party” that could refer a dispute to adjudication. 

It should be noted that the judge confessed to finding the point finely balanced, and permission to appeal has been granted. As such, it is possible that the Court of Appeal will reverse or refine the position. 

Indeed, while Abbey Healthcare (Mill Hill) Ltd v Augusta 2008 LLP (formerly Simply Construct (UK) LLP) [2024] UKSC 23 was not considered by the TCC, it perhaps bears note that the Supreme Court found in that case that a collateral warranty was not a construction contract under the HGCRA 1996 such that a beneficiary of such a warranty did not have the right to statutory adjudication. The Supreme Court’s view was that the improvement of cashflow (which it saw as the main purpose of the HGCRA 1996), would not be furthered by HGCRA 1996’s application to collateral warranties. There are similarities between beneficiaries and assignees in that both receive the benefit of obligations owed pursuant to an underlying building contract, and the Supreme Court’s view regarding cashflow is equally applicable to assignees of the employer’s benefits, which might point to a reversal of the first instance decision in Paragon v FK Facades.

Nevertheless, the position will be as stated by the TCC at first instance until any judgment is given on appeal. 

JV partners

Conversely to the finding in Paragon v FK Facades, where the interpretation of “Party” allowed adjudication, in Darchem Engineering Ltd v Bouygues Travaux Publics the meaning of “Party” was interpreted in a way that meant adjudication was not available to the referring party, Darchem.

It was held that the meaning of “Party” in the subcontract was such that an individual partner in an unincorporated JV was not a “Party” to the subcontract that could bring adjudication proceedings. That was despite the subcontract stating that the companies comprising the contractor and subcontractor JVs were, respectively, acting jointly and severally as the contractor and subcontractor. The court considered that the subcontract was drafted “in a manner objectively consistent with the Subcontract being bilateral, with two parties”, not multilateral with all constituent parties of the JVs. That included the “numerous references in the context of the ‘Parties’ to ‘either’ and ‘both’ and ‘the other’” which is “language consistent with there being only two parties”. Further, where provisions were intended to refer to a constituent partner of the JV, distinct drafting was used to specify that. 

Accordingly, the adjudicator did not have jurisdiction, and Darchem’s £24m award could not be enforced. 

Conclusion

So, whereas an assignee of a contract on the same or similar terms to those in Paragon v FK Facades can adjudicate alone and does not need to join the assignor to the adjudication proceedings, if the contract is drafted in the same or similar way as that in Darchem v Bouygues, a constituent partner of an unincorporated JV will need to be joined in the adjudication by all other partners of the unincorporated JV. That said, it would be possible to draft the contract in a way that does permit a singly JV partner to bring adjudication.

As such, an assignee of the employer’s rights will have the potential benefits of adjudication that a single JV partner (or collateral warranty beneficiary) will not, namely potentially being able to ‘ambush’ a responding party, and having their dispute decided in adjudication (at lower cost over the course of weeks), rather than in litigation (at a higher cost over the course of months or even years).

Building Liability Orders before trial: TCC raises the stakes in Crest v Ardmore

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In Crest Nicholson Regeneration Limited v Ardmore Construction Limited [2026] EWHC 789, the TCC handed down one of the most important Building Safety Act decisions to date, granting two Building Liability Orders (BLOs) against companies associated with an insolvent contractor.

What happened?

Crest Nicholson Regeneration Limited (Crest) engaged Ardmore Construction Limited (ACL) to design and build a residential development in Portsmouth. Post‑Grenfell investigations identified serious fire safety defects in the external wall system. Crest referred the dispute to adjudication. The adjudicator held that the defects amounted to breaches of the Building Regulations and the Defective Premises Act 1972 and awarded Crest £14.9m. ACL entered administration the day before the decision was made and ultimately did not pay.

The application

Crest applied for:

  • an anticipatory BLO, making ACL’s associated companies jointly and severally liable for any liability later established against ACL; and
  • an adjudication BLO, making those associates liable for the unpaid adjudicator’s award.

The decision

The Court granted both BLOs, holding that:

  • BLOs can be made before trial, even where liability is disputed;
  • An adjudicator’s decision can be a “relevant liability” under the Building Safety Act;
  • ACL’s insolvency, group restructuring to ring‑fence liabilities, and the associates’ long‑standing knowledge of the claims all pointed strongly towards it being just and equitable to make the orders; and
  • The Court had a “high degree of confidence” that ACL would ultimately be found liable for the defects. 

Why this matters?

  • Associated companies can face early exposure, even before liability is finally determined.
  • Corporate restructuring and insolvency will not prevent liability being passed up to the group.

Grenfell Tower Inquiry: update on recommendations

Terraced houses in brick stand in a row, featuring black doors and white-framed windows. A street lamp with hanging flowers sits in front, and a sign reads "Shouldham Street W1".
London, England - June 15, 2023: A train passes in North Kensington with the Forever in our hearts support banner visible on the Grenfell tower in the background

In September 2024, the Grenfell Tower Inquiry published its final report which made 58 recommendations based on its findings and in our original article we looked at some of the key recommendations affecting the construction industry. We now take a look at the Government’s response to two of those recommendations: 

  • to review the definition of Higher-Risk Buildings; and
  • to convene an advisory panel to produce an authoritative statement on the knowledge and skills to be expected of a competent fire engineer. 

Review of the definition of Higher-Risk Buildings

The concept of a Higher-Risk Building (“HRB”) was introduced by the Building Safety Act 2022 (“BSA”) which contains onerous obligations governing the design, construction and occupation of HRBs. 

In England, the current definition of an HRB is a building which: 

  • is at least 18 metres in height, or has at least 7 storeys;
  • contains at least 2 residential units; and
  • does not comprise entirely of a secure residential institution, a hotel, or military barracks, and does not contain military accommodation. 

For Part 3 of the BSA (design, construction, and building work to existing higher-risk buildings), hospitals and care homes are HRBs, but, under Part 4 (in-occupation duties), they are not. 

As part of the review of this definition, the Government directed the Building Safety Regulator (“the Regulator”) to carry out a review of the key factors in the HRB regime and their implications. Following consideration of the available evidence, the conclusion published in December 2025 was that the original definition “still seems focused on the appropriate categories of buildings”, and that an increase to the scope of the HRB regime at this time would not be right. It was also noted that the definition of HRB, and the associated regime, has only been in operation since April 2024 and so it is still early to say whether it needs to be changed, albeit it is already having a positive impact on buildings within its scope.

Despite this, the Government and the Regulator acknowledged the importance of work to protect vulnerable residents as well as the evolving risks of the built environment and agreed that the Regulator will operate a process for ongoing risk-based review of the definition. 

The conclusion is in quite stark contrast to the Inquiry’s finding that defining an HRB by reference to height is unsatisfactory and arbitrary, with the nature of its use and the presence of vulnerable people being more relevant than height. The material tension between the ideal approach, and an approach that is workable in practice, is manifest in this result, and it seems the Government has fallen on the side of practicality so as not to further stifle development in the UK, particularly in the residential sector. 

Authoritative statement 

In response to this recommendation, the Government appointed a panel comprised of eight of the foremost experts, which produced the authoritative statement in December 2025. 

The panel set down the following definition for a fire engineer:

“Fire engineers are professionals who develop and deliver engineering solutions that protect people and mitigate harm to the built and natural environment in the event of fire.” 

The statement observed that there is no single recognised pathway to becoming a fire engineer, which leads to variation in the qualifications and skills of those operating as fire engineers. Further, ethical standards are inconsistently defined and monitored, and engineering principles are not always effectively applied, which leads to issues with delivery and poor confidence in the profession.

The statement confirms the panel’s support for the Government’s intention to regulate both the title and function of fire engineers and required legal restrictions on the use of the title of fire engineer. Further, statutory regulation should define the functions and activities that can be performed only by an individual who is registered and has met specific requirements. The preparation of the fire strategy should be a protected function, as that is the fundamental core of a fire engineer’s work. In the absence of an existing authoritative definition of what a fire safety strategy is, the statement sets out the panel’s view on what a fire safety strategy should include, and notes that “In delivering the fire safety strategy, the role of the fire engineer is fundamentally one of integration. The fire engineer acts as the link between multiple disciplines”.

The Government has achieved a robust delivery of this recommendation, with the panel’s statement and the Government’s intentions being aligned, which will hopefully motivate the Government. The stumbling block will be the timeline for the Government to turn intention into reality, and whether the practical reality of the huge demand for fire engineers will lead to the Government diverging from the panel’s statement and its current intention.