HT-2019-CDF-000012 - [2025] EWHC 1315 (TCC)

Paragraph 44 of the Schedule of Loss defines “Investment Loss” to mean “the difference in value, between the dates of acquisition and the dates of disposal, of the Flats as an investment compared with an average return on an investment in residential property classed as suitable for secured lending on ordinary market terms within the Cardiff area.”

In my judgment, this head of claim is clearly unrecoverable. First, although analytically different, it represents a duplicative claim of that for Total Capital Losses. (I accept that this need necessarily not be determinative. Mr Wilson made clear that he accepted the possibility of double recovery and did not seek to recover more than once for the same loss. He said that the trial judge could ensure that there was no double recovery and suggested that the two heads of claim might be treated as alternatives.) Second, the head of claim is wrong in principle, because it seeks damages based on a return that might have been made on a different investment. To put the matter broadly: if the leaseholders have valid claims resulting from previously unknown defects in the flats, they are entitled to damages reflecting the consequences of the defects; this will typically be diminution in value, and it may also include loss of use value and something to represent the disturbance resulting from the defects and any remedial works. Thus, a claim for diminution in value is permissible, but the claim for Investment Loss is not.