HT-2022-000311 & HT-2022-000254 - [2024] EWHC 3179 (TCC)

The total sums payable by way of damages to RTM and the leaseholders will be drawn together and form part of the final Order. RTM and the leaseholders are not registered for VAT and, therefore, where they have paid or will pay sums which include VAT, the totals should include the VAT.

In relation to a number of leaseholders, their claims were made to the date of the updated Schedule of Loss and/or the date of trial but they have continued to incur losses, particularly if they have remained out of occupation. These losses flow from the breaches established and should be recoverable as damages but they should be established or estimated from the evidence already before the court.

As pleaded, the claimants’ case was that Click St Andrews had failed to plan and implement the drying out of the property with reasonable care and skill; had failed to ensure that the property was watertight before commencing remedial works; and had failed to carry out remedial works.

In opening, that case was elaborated upon, although in fairly general terms. It was said that the schedule of remedial works proposed was wholly unrealistic and that the defendant ignored the advice of their own surveyors, Project Surveyors. Their investigation and report dated 6 October 2021 had identified widespread damage and advised that no remedial works should be undertaken until the building was dried out and watertight. Drying out should be undertaken by a specialist. The claimants referred to Mr Rivett’s evidence about the drying out undertaken and the inadequacy of the drying out certificates.

By the time of closing submissions, the claimants also alleged that inadequate steps were taken to repair firestopping and to re-stabilise its structural integrity and that the defendants had prematurely remedied flat 14.

As I have considered above, the reliance on defective remedial works was driven by the desire to be able to allege a breach that fell within section 2A of the DPA. Even with the consideration that had been given to this aim, it was still, by the time of closing submissions, a wholly generalised case. It is impossible to identify anything that was done, after the coming into force of section 2A, that could give rise to a breach of that section or to any identifiable or quantifiable damage. This particular aspect of the claimants’ case fails.

On 9 February 2024, Southwark Council issued a Dangerous Structure Notice in respect of the property. The notice stated:

“Having been notified that the above named structure may be in a dangerous state, the council’s building control duty surveyor …. has completed a survey. The surveyor has found the structure to be in an immediately dangerous state.

The result of these findings (sic) this notice requires you to take down, remove or secure the structure and undertake any further work that may be required in consequence of these actions.”

Although this notice is a matter of obvious and great concern to the claimants, I have not placed any reliance on it in coming to my conclusions. The survey was not provided and the notice does not in any way assist in identifying what the council considers to be dangerous.

I would be grateful for the assistance of counsel in drawing together the total sums which I have awarded with a view to including that figure in the consequential order and identifying what has been awarded to individual claimants. I repeat that there can be no double recovery.

There is a freezing injunction in place against Click St Andrews, made by O’Farrell J on 22 August 2022. That will remain in place. There is an outstanding application before me to vary the injunction which will be the subject of a separate judgment. I will deal with the claimants’ wish to discharge the undertaking as to damages at the consequential hearing.

I have made decisions as to whether there is a relevant liability for the purposes of section 130 of the Building Safety Act 2022 and any application for a BLO will be dealt with at the consequential hearing, together with costs, interest, and any other outstanding matters including the final quantification of claims as referred to in this judgment.