The recent decision of the TCC in GS Woodland court GP 1 Ltd & Anor v RGCM & Others [2026] EWHC 351 (TCC) offers a helpful take on a number of issues which commonly arise in the context of building safety claims. Ben Hardiman and Faye Sanderson explore its consequences in this article.
Background
The dispute concerns alleged fire safety defects in student accommodation in Islington (the Development). The owner, Woodland, brought proceedings against seven defendants involved in its construction seeking damages arising from its allegedly defective design and construction.
As the Development is a Higher Risk Building, within the meaning of section 31 of the Building Safety Act 2022, Woodland was obliged to obtain approval from the Building Safety Regulator (BSR) before commencing any remedial works.
By early March 2025, Woodland had set out a fire safety remediation scheme, the cost of which amounted to £19.7m of their £35m total claim for damages (mitigation remedial scheme). Woodland submitted the mitigation remedial scheme to the BSR on 30 June 2025 and, although the BSR is supposed to respond within eight weeks, it actually took four months for the BSR to reject the mitigation remedial scheme. The BSR’s reasons for the rejection included alleged lack of information, lack of substantiation and concerns expressed by the London Fire Brigade about the proposed design. Woodland therefore needed to go back to the drawing board.
In the meantime, the trial was listed to start on 8 June 2026.
Woodland was targeting 16 March 2026 as the date for the resubmission of its remedial scheme to the BSR. Woodland’s best case was that the BSR would meet its eight-week target for dealing with applications. Even then, Woodland would have only found out if its revised remedial scheme was approved on the first day of trial. However, past experience suggested the BSR was unlikely to comply with that deadline, in which case Woodland wouldn't know if its remedial scheme could be built until well after the conclusion of trial. This caused Woodland significant difficulties since it prevented the accurate quantification of its loss in time for trial.
Woodland therefore applied to adjourn the trial to give time for the BSR to make a decision on the resubmitted remedial scheme (the application). Some of the defendants opposed the application, arguing that the trial should proceed as listed.
The TCC’s decision on the application
The court considered the overriding objective to deal with cases justly and at proportionate cost, in accordance with CPR rule 1.1(2), and principles of fairness.
The court acknowledged that it would be unlawful for Woodland to implement any remedial scheme unless it had been approved by the BSR. However, the Judge also decided that it was an overstatement to contend that a scheme approved by the BSR “is prima facie a reasonable remedial scheme”.
The court therefore determined that whilst it would be unfair to insist that Woodland proceed to trial in respect of quantum, the issue of liability could be tried separately, without the need for the BSR approving the remedial works. The court therefore rejected Woodland’s application to adjourn the trial in full and ordered that the trial on liability proceed in the existing trial window, commencing on 8 June 2026, with quantum to be determined in a second trial following BSR acceptance and subject to the judgment on liability.
Commentary
The decision highlights the significant impact that the delays caused by the BSR are having on claims being dealt within the court system. This causes an inherent challenge for litigants where, on the one hand, a claimant cannot lawfully proceed with remedial works without BSR approval, but on the other, the parties need to understand the extent and value of the necessary remedial works to decide on whether to resolve or fight their case. All this in the context of a court led timetable. Ultimately the cause of the need to adjourn in this case was a third party (the BSR) rather than the claimant so the court was willing to exercise its case management powers to split trials on liability and on quantum. However, the court emphatically rejected any suggestion that this decision would mean that, as a matter of principle, a trial relating to a claim involving remediation works which require BSR approval can never proceed.
The court accepted that some witnesses would likely be required to give evidence in both trials. However, in circumstances where the same judge hears both trials (as would be the intention), duplication of evidence, time and therefore cost, could be managed and minimised. It was reported that one of the witnesses was due to retire which would potentially cause prejudice but it was not accepted by the court that this would cause prejudice, particularly given the “heavily expert driven” nature of the claim.
In this case, the uncertainty created by the requirement for remedial works to be approved by the BSR combined with the inflexibility around the court timetable, means the parties are unlikely to be able to properly assess the quantification of loss before what is now a liability only trial. That may make it difficult for the parties to reach a resolution of it. This may result in the court having to assess the liability issues which arise in a fire safety context which will be of considerable interest to those in the construction sector and their insurers.
It remains to be seen whether the Government’s broad ambition to introduce a single construction regulator will come to fruition or will rectify the delays which parties have experienced the BSR to date.
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