In GS Woodland Court GP 1 Ltd v RGCM Ltd [2026] EWHC 351 (TCC), the Technology and Construction Court ("the Court") has recently provided important guidance on the interaction between construction litigation and the Building Safety regulatory regime.
Background
This case related to a claim for the costs of remedial works to a student accommodation development in Islington, London. The building was constructed using a modular system and a number of fire safety defects are alleged. Importantly, the development is a “Higher-Risk Building” ("HRB") within the meaning of the Building Safety Act 2022 ("BSA"). As a result, under the Building (Higher Risk Procedures) Regulations 2023, the remedial scheme required approval from the Building Safety Regulator ("BSR").
Although the BSR’s published guidance refers to an eight-week determination period, in practice decisions are often significantly delayed. In this case, the BSR took approximately four months to issue a rejection of the claimant’s proposed remedial scheme.
Following that rejection, the claimant, Woodland, argued that it would be unfair to proceed to trial in circumstances where the position on the appropriate remedial scheme remained uncertain. This was opposed by three of the Defendants.
Counsel and the Court acknowledged that it is common in construction disputes for the Court to determine reasonable and proportionate remedial solutions on the basis of expert evidence, where a remedial scheme is not yet in place before trial. However, Mr Justice Constable considered that the factual position in this case was materially different. The BSR's rejection meant that Woodland only had pleaded quantum positions for the scheme rejected by the BSR ("Unlawful Scheme") and another scheme which amounted to a rebuild ("Rebuild Scheme"). The Court concluded that it could not assess quantum on the basis of the Unlawful Scheme and the Rebuild Scheme was pleaded to show that the Unlawful Scheme was reasonable. Therefore, the Court concluded that there was no pleaded and "credible" basis that Woodland had to argue its loss.
In those circumstances, the Court concluded that it would be unfair to require Woodland to proceed to trial on the issue of quantum. This was not a situation of the claimant’s making, and proceeding could leave the Court "in an invidious position where it has no evidence reflecting the true likely loss." The Court further acknowledged that Woodland would simply not have the time to re-plead a different quantum position and have all the experts review it before the PTR and trial.
The Court therefore ordered a split trial with liability issues being argued during the original trial window with quantum, later. This, the Court acknowledged, was the “least imperfect option”. However, the Court emphasised that claims should not and will not routinely be delayed pending BSR approval.
This case again illustrates the TCC's pragmatic approach to both case management and the assessment of loss. Mr Justice Constable made an important point, saying "…the fact of the BSR's approval would be largely irrelevant to the central question which a Court is usually faced with in cases such as this, namely whether the remedial solution is over-designed and/or in any event more costly than might otherwise be achieved by adopting a different solution, so as to make the claimant's scheme unreasonable. Put another way, the BSR is not concerned with whether the adoption of a particular solution is compatible with a claimant's duty to mitigate. Whilst the fact of approval is not irrelevant, it seems to be an overstatement to contend, as pleaded by Woodland, that an approved scheme "is prima facie a reasonable remedial scheme" (at least in all senses of the word "reasonable")".
Key takeaways to bear in mind are:
- BSR decisions can be a risk in litigation – more so for delays and costs.
- BSR requirements/approval of schemes remains distinct from legal "reasonableness".
- Split trials may become more common.
