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

The Judgment

The judge at [28] characterised the absence of any quantification of Disputed Head 4 as “a give-away”. He went on to say that, in principle, actual loss of rental income was capable of being a recoverable head of loss. But he said that the actual receipt of lower rent was primarily a matter of fact and that there was no positive averment that, by reason of the defects, the Wilsons have been unable to obtain higher rents that would otherwise have been available.

Having identified the generic way in which the claim was put, the judge went on to say this:

“28…The trouble with this is that it advances a claim on a hypothetical basis, by reference to what rent could have been sought in differing factual situations. However, the starting point for a claim for lost rental income must be a factual case: that the owner was unable to let the flat at all or was able only to let it at a reduced rent. No such case is advanced. An expert can do no more than opine as to whether or not higher rents could have been obtained. The position on the averred facts is that the Wilsons did not actually seek higher rents or receive advice that they could not seek them; they simply decided to request rents below those indicated by the market. I repeat that loss of rental income is in principle a valid head of claim. But, if the Wilsons wish to pursue it, they must particularise an actual loss and seek permission to amend.”

First, Mr Butler made the point that the claim for loss of rent was covered by paragraph 25.2.2 of the RRRAPOC, so that the pleading point that affected all the other disputed heads of loss did not arise here. Secondly, he said that the Schedule of Loss identified the rent charged for the flats in 2014 and November 2024 (when the Schedule was produced) and went on to provide general information as to the growth of rents in the Cardiff area since 2016. But he agreed that Disputed Head 4 could have been more fully particularised and accepted that particulars could helpfully have been given as to what rent the tenants had been charged at all stages, and what rents could have been charged but for the defects.

His real point of substance was that Disputed Head 4 was capable of being salvaged by amendment and the judge should have adopted that course, rather than striking it out.