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

The Pleaded Case

The Re-Re-Re-Amended Particulars of Claim (“RRRAPOC”) were drafted by Mr David Sawtell of counsel on behalf of all the claimants, including the Wilsons. Paragraph 25 sets out the heads of loss. Paragraph 25.1 is concerned with the losses incurred by CMCL. Paragraph 25.1B identifies the lease holder claimants’ obligation under the leases to contribute by way of service charge to the costs incurred by CMCL in consequence of the defects at the development. Paragraph 25.2 then goes on to set out in general terms the lease holder claimants’ heads of loss:

“Further, the Claimants have suffered (the quantum of which will be confirmed by the service in due course of a schedule of loss in respect of each Claimant):

25.2.1

Diminution in the value of the Flats and will suffer such diminution notwithstanding the remedy of the defective works;

25.2.2

Loss of rental income;

25.2.3

Damage to their health by reason of the development of mould and damp within the Flats;

25.2.4

Inconvenience and distress.

25.2.5

Decanting costs (including the costs of alternative accommodation and storage) if the Claimants have to be decanted from the buildings during the remedial works.”

As noted by the judge at [18], the individual Schedules of Loss served by all the other claimants are in accordance with the framework in paragraph 25 of the RRRAPOC. They have not given rise to any issues. However, on any view, the Wilsons’ Schedule of Loss, provided in relation to the two flats at the building that they owned, was not in accordance with that framework. It purports to advance nine different heads of loss. Save for the service charge loss, and the interest loss (which were not the subject of the strike-out application and which are now accepted in principle by the defendants), each of the other seven heads of loss set out in the Schedule of Loss were struck out by the judge.

I shall address each of those seven disputed heads of loss when I consider the detail of the appeal. I note that, quite properly, Mr Butler KC did not support the seven heads of loss as formulated in the Wilsons’ Schedule of Loss, and rightly accepted the unnecessary complexity that it introduced.