HT-2022-000417 - [2025] EWHC 1691 (TCC)

THE CLAIMS

I will now consider the remaining claims.

Abbey claims that the fact of and the remediation of the defects inhibited occupancy and the profitability of the care home. Abbey claims its loss of trading profits from the reporting of the defects to September 2021.

Abbey seeks, rightly I consider and so find, that it should be put in the position it would have been but for Simply’s admitted breaches of duty. This exercise requires a comparison of the profit earned in fact in the relevant period (the “actual position”) with the profit which could have been earned but for Simply’s breaches of duty (the “but for position”).

The “actual position” is both known and agreed by the independent expert accountants. During the period of Abbey’s claim being September 2018 to September 2021 Abbey created a profit of £3,774,000 plus adjustments of £12,000 under the statutory audited financial statements. The total actual net profit in the relevant period for Abbey’s claim is £3,786,000. This is an agreed figure.

For ease of reference the occupancy data in the agreed joint model for the actual position and the but for position is as follows:

The respective positions of the independent accountancy experts regarding the loss of trading profits are as follows as appears from their Supplemental Joint Statement.

“Loss of trading profits suffered by Second Claimant - summary of Experts' calculations

Mr Langley for the Second Claimant

After taking into account the update applied to costs in the category labelled 'Recruitment' as discussed in item C1 above, Mr Langley considers that the calculated lost trading profits may be summarised as shown in the following three summary tables:

Table 1 Lost trading profits of the Second Claimant - Langley loss calculations, occupancy growth of 3 residents per month (all values recorded in £000)

Description	Sept-Dec 2018	2019	2020	Jan-Sept 2021	Total
Trading profit in the hypothetical 'but for' scenario	413	2,687	3,007	2,122	8,229
(A)
Trading profit in the actual scenario (B)	366	1,230	1,079	1,112	3,786
Lost trading profits (A - B)	47	1,457	1,928	1,010	4,442
Source: Updated Joint Model {D1.4/2}