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

Fecha: 29-Oct-2025

The Argument Advanced Now

8.3

The Argument Advanced Now

32.

In his skeleton argument at paragraphs 36-39 the principal point taken by Mr Butler was that the judge was wrong to say that the Wilsons were not entitled to recover these losses because they did not sell the flats on the dates when the defects manifested themselves. He made the point that, in law, a claim for diminution in value accrues whether or not the asset in question is sold or repaired (as noted in The London Corporation).

33.

However, during the course of his oral submissions, when answering questions from all three members of the court, that point of principle became almost entirely academic. That was because the essential elements of what Mr Butler said was the Wilsons’ case on Disputed Head 1 were wholly different to those set out in the Schedule of Loss. That new, unpleaded case went something like this:

(a)

The Wilsons gifted the flats to their daughters in November 2024.

(b)

At that time, although it looked as if the defendant may well carry out remedial works, there was no binding agreement in place to that effect, and the flats remained defective.

(c)

The Wilsons suffered a loss because they gifted flats to their daughters which were not worth what they would have been if there had been no defects.

(d)

The Wilsons should be treated in the same way as claimants who had sold their flats before the remedial works were carried out, and at a lesser value. They should not be penalised because they gifted the flats to their daughters rather than selling them.

(e)

Although not entirely clear, there also appeared to be a separate element of the Wilsons’ new claim to the effect that the defendant had unreasonably delayed in agreeing to carry out the works.