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

Paragraph 47 of the Schedule of Loss defines “Rental Income Loss” as follows:

“47.1

the difference between the total gross income which is estimated would have been receivable received by the Claimants from sub-letting the flats in good habitable condition and the gross income actually received (or estimated to be receivable hereafter) by the Claimants; and

47.2.

any Council Tax paid or payable by the Claimants because either of the Flats was or will be untenanted for any period,

from the date of the Claimants’ purchase of the Flats until either the date of sale or the completion of repair of the defects, whichever is sooner.”

The Schedule of Loss does not quantify this head of claim; instead, it promises particulars upon receipt of expert evidence. This, in my view, is a give-away. In principle, actual loss of rental income is capable of being a recoverable head of loss; it is pleaded in paragraph 25.2.2 of the POC. However, the actual receipt of lower rent is primarily a matter of fact. Mr and Mrs Wilson do not make any positive averment that, by reason of the defects, they have been unable to obtain higher rents that would otherwise have been available. Nor do they purport to be able to quantify the alleged losses. What they say is this:

“20.

On 11 July 2014, 339 Vega House was rented out at £895 per calendar month. On 16 October 2014 354 Vega House was rented out at £1,350 per calendar month. Rental income for the Flats in November 2024 was £1,125 and £1,700 per calendar month respectively. Both flats are rented fully furnished. Prior to the most recent tenancy, 354 Vega House was refurbished with high quality furnishings including installing granite worktops in the kitchen.

21.

The Office for National Statistics shows consistent growth in rental values in Cardiff since 2016, with a 9.8% rise in the year to October 2024 alone. The Wilsons have been conscious of the Defects, particularly in Vega House and have been reluctant to increase rents in line with the Cardiff market. Further analysis is required to quantify rental losses and will be supplied in accordance with the directions as to the provision of expert evidence.”

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.