CA-2025-001477 - [2025] EWCA Civ 1360

Conclusion

As Mr Butler rightly conceded, the kernel of Disputed Head 7 as now advanced was the Wilsons’ averment that they delayed in divesting themselves of these flats because of the existence of the defects. But he was also bound to accept that the crucial trigger for such a claim is not pleaded anywhere in the Schedule of Loss. It is not entirely clear that it has even been suggested before. On any view, therefore, the pleading of Disputed Head 7 is fundamentally deficient because it does not contain a clear statement of the way in which the Wilsons want to put this head of loss now. In addition, as with so many of these later heads of loss, no figure is provided by way of damages. I consider both of these to be fatal defects.

I make no comment on the other potential difficulties facing Disputed Head 7 as articulated by Mr Butler, such as remoteness and foreseeability. It is unnecessary to do so, in the light of the more fundamental deficiencies already noted. But for the reasons set out above, as well as the reasons noted by the judge, I consider that, as pleaded, Disputed Head 7 was unarguable. I therefore consider that it was rightly struck out.