GS Woodland Court GP 1 Limited & Anor v RGCM Limited & Ors [2026] EWHC 351 (TCC)

[2026] EWHC 351 (TCC)Case No HT-2023-000202IN THE HIGH COURT OF JUSTICETECHNOLOGY & CONSTRUCTION COURTVenue The Rolls Building, 7 Rolls Building, Fetter LaneLondonEC4A 1NLDate 19 February 2026
Before
MR JUSTICE CONSTABLE
Between
GS WOODLAND COURT GP 1 LIMITEDClaimantGS WOODLAND COURT GP 2 LIMITEDClaimant(ACTING AS GENERAL PARTNERS ON BEHALF OF GS WOODLAND COURTClaimantLIMITED PARTNERSHIP)Claimant- and –
Between
RGCM LIMITEDDefendantHADFIELD CAWKWELL DAVIDSON LIMITEDDefendantMET-CLAD CONTRACTS LIMITEDDefendantUNITE MODULAR SOLUTIONS LIMITEDDefendantUNITE INTEGRATED SOLUTIONS PLCDefendantEUROLEC SERVICES LIMITEDDefendantQUADRO SERVICES LIMITEDDefendantCLAIRE PACKMAN KC and DANIEL CHURCHER (instructed by Jones Day) appeared for ClaimantJESSICA STEPHENS KC and DANIEL KHOO (instructed by Reynolds Porter Chamberlain LLP) appeared for First DefendantBEN PATTEN KC (instructed by Keoghs LLP) appeared for Second DefendantJONATHAN SELBY KC (instructed by Walker Morris LLP) appeared for Fourth & Fifth DefendantsALEXANDER BURRELL (instructed by Howes Percival LLP) appeared for Sixth DefendantApproved JudgmentThis judgment was handed down remotely at 10.30am on 19th February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The Claimant and Applicant (“Woodland”) has applied to adjourn the trial of this matter, presently listed to start on 8 June 2026, to the first convenient date after 1 June 2027 and for consequential directions. The application is opposed by the First Defendant, RGCM Limited, and the Fourth and Fifth Defendants, Unite Modular Solutions Limited (“UMS”) and Unite Integrated Solutions PLC (“UIS”), known as ‘Unite’ collectively. The application is neither supported nor opposed by the Second, Third and Sixth Defendants.[2]Woodland relies upon the second and third witness statements of Mr James Pickavance, a partner at Jones Day with conduct of this matter, dated 12 December 2025 and 5 February 2026 respectively, the first and second witness statements of Mr Rahim Rahemtulla dated 12 September and 12 December 2025, and the first witness statement of Mr Fabio Antoncini dated 30 January 2026. Unite have relied upon a witness statement by Mr Thomas Peel, a partner at Walker Morris LLP, dated 30 January 2026.[3]I gave my determination of the outcome of the application at the conclusion of oral argument, giving brief reasons. I indicated that I would provide fuller reasons in writing following the hearing. These are those reasons.[4]Woodland is the owner of a building (“the Development”) in Islington providing student accommodation. The Development consists of three blocks and at its highest is nine storeys high. The Development was constructed using the construction management method of procurement. Hence, it was not carried out by a conventional main contractor, but was carried out by a “construction manager” and a series of “trade contractors”. The Development was constructed using modular construction, designed, manufactured and supplied by UMS and installed by the Seventh Defendant (“Quadro”). Quadro is now in liquidation.[5]RGCM was the construction manager, and the Second Defendant (“HCD”) was the architect. The Third Defendant, (“Met-Clad”) was the cladding trade contractor, and the Sixth Defendant (“Eurolec”) was the mechanical and electrical trade contractor.[6]Woodland alleges in these proceedings that there are numerous fire safety defects present in the Development as a result of breaches of contractual, tortious and statutory duties by various Defendants. The claims against each Defendant are different given that they all had different roles and responsibilities. Woodland’s claim is for the cost of implementing a remedial scheme which, it says, will directly remedy certain of those defects and mitigate the fire safety risks associated with others (by for example the use of a misting system and VESDA detection system) so as to render the Development compliant with Building Regulations. The total sum claimed is £35m, of which £19.7m is said to relate to the “Mitigation Remedial Scheme”, which is said by Woodland to be necessary to remediate the totality of the defects identified.[7]Of central relevance to the present application is the fact that the Development is a “Higher Risk Building” within the meaning of section 120D of the Building Act 1984 (as inserted by section 31 of the Building Safety Act 2022). It is not disputed that pursuant to Regulation 11 of the Building (Higher Risk Procedures) Regulations 2023 Woodland must obtain approval from the Building Safety Regulator (“BSR”) before commencing any remedial works.[8]On 30 October 2025, the BSR rejected Woodland’s proposed remedial scheme. The reasons included alleged lack of information, lack of substantiation and concerns expressed by the fire engineer (in this case the London Fire Brigade) about the proposed design leaving in place deficiencies such as “lack of compartmentation both internally (voids in-between modules, non-compliant ductwork) and externally (voids, lack of cavity barriers), combustible materials in the external wall system, extended travel distances proposed in unventilated corridors with studio flats, lack of ventilated lobby protection to ground floor escape routes, and watermist system in lieu of sprinkler system”.[9]At the heart of the application is consideration of the extent to which this rejection impacts the viability of the present timetable to trial.

Procedural Background

[10]In light of the arguments and counter-arguments deployed, it is necessary to consider some aspects of the procedural background.[11]As summarised by Mr Pickavance in his Second Witness Statement, Woodland sent a set of initial notification letters to the Defendants in these proceedings in March 2022, asking the Defendants to enter into standstill agreements, given the length of time that had passed since the Development was completed and the limitation issues that might otherwise have arisen. The Defendants all agreed to enter into standstill agreements which were extended on several occasions during the pre-action protocol process. There came a point where UMS was not willing to agree to any further standstill period and, in order to protect its position, Woodland issued proceedings on 9 June 2023.[12]By this point, Woodland had the RIBA Stage 3 design for the remedial scheme in hand. Woodland's claim was put on the basis of the estimated costs of implementing the scheme as shown in the RIBA Stage 3 design which it initially hoped would not require BSR approval. By the time of the first CMC, held on 11 October 2024, Woodland was working on the basis that it would need to obtain BSR approval for its remedial scheme. The Particulars of Claim at that time provided that the BSR process may result in changes to its then intended scheme for remediation and that Woodland was unable to say what remedial measures it would implement until that process was concluded. In the circumstances, Woodland declined to provide further particulars at this stage of the remedial measures that it would implement. Several Defendants sought a direction, in a hearing before Waksman J, that Woodland be required to amend its Particulars of Claim to provide updated particulars of the proposed remedial scheme. The agreed position of all Defendants save UMS was that the “finalisation of the remedial scheme and costs will impact timelines for amendment to pleadings, disclosure, expert evidence, and ADR.” UMS also anticipated that if the timetable for BSR approval of the remedial scheme slipped further than anticipated in Woodland's letter of 1 October 2024, the result would be that the quantum case might be pleaded too late for it to be heard at any trial that may be listed at this CMC. UMS reserved its position as to whether the liability issues should be heard separately to the quantum issues in the event that there was slippage in the timetable for finalising the remedial scheme.[13]Waksman J decided that the then-anticipated remedial scheme ought to be both provided to the Defendants prior to submission to the BSR to enable them to comment upon it, and that the remedial scheme actually provided ought be the subject of a properly formulated quantum claim. As to the second point, he said:
“The second question, it is called an amendment but, in effect, it is starting again with this aspect of the claim and it can be done by way of simple particulars of the loss here, which can then be responded to in a counter-schedule. I do not see any reason why the amendments or the particulars should not be provided by February of next year, which will then of course be based on the actual proposal as it has been submitted to the BSR. Of course it is possible that the BSR will require certain changes, and that might require certain amendments, but I very much doubt whether the BSR is going to look at a considered document like this and decide that it is not worth the paper it is written on and everybody has to start again.”
[14]Thus, the link between the particularisation claim and the scheme as submitted was acknowledged by both the parties and the Court, and the Court’s direction was predicated on the basis that they did not consider it likely that the BSR approval process would, to any material degree, impact on the as-pleaded case so that any further amendment would likely be limited. Whilst, therefore, Mr Selby KC is correct in his contention that Woodland did not seek a stay of proceedings pending BSR approval, it is apparent that neither the parties nor the Court envisaged the situation which has now arisen.

The Timing of the BSR Submission and the Application to Adjourn

[15]Woodland were required to set out its remedial scheme by 7 March 2025. Whilst it did this, this scheme had not by this stage been submitted to the BSR. This did not occur until 30 June 2025. Notwithstanding the length of time taken to complete the remedial design and submit it, I accept – at least for the purposes of this application - the submission of Ms Packman KC, based upon the evidence of Mr Rahemtulla, that although the process was lengthy, this cannot be attributed to culpability on the part of Woodland. The duration seems on its face to be driven by the complexity of the remedial scheme and the requirements of the new building control regime. There can be no doubt that steps such as the appointment of a shadow team of consultants, aimed to improve the robustness of the design, will add materially to the overall process in terms of time (and no doubt cost).[16]Mr Selby KC advanced a related criticism that Woodland did not accept input into the remedial scheme submitted to the BSR. In circumstances where, as Mr Selby KC made clear in his submissions, the Unite position adopts (without prejudice to liability) an entirely different remedial solution as the correct answer, it is difficult to see in practice what “input” could sensibly have been taken on board. The right remedial scheme will be a matter for trial. It is not said, at least for the purposes of this application, that the BSR rejection was itself caused by the submission of one, rather than the other, scheme; and even if it were said (or will be said at trial), it is not a dispute that could possibly be resolved in the context of the present application to adjourn.[17]This BSR submission covered all three blocks of the Property, and was submitted under a single HRB registration for Block A. On 7 August 2025, it stated that it was of the view that each HRB registration needs to be the subject of its own application. On 1 October 2025, Woodland submitted two additional applications under the HRB registrations for Blocks B and C.[18]Although the period within which the BSR is meant to respond is 8 weeks, the rejection of Woodland’s remedial scheme for Block A was not communicated until 30 October 2025. The BSR’s comments on the remedial scheme came in three parts: a covering letter, and then two comment sheets, one titled “BCAA Assessment Report”, and one titled “Fire and Rescue Authority Report”, prepared by the London Fire Brigade, sent on 5 November 2025. Although it would have been obvious that the same outcome was inevitable for the identical schemes for Blocks B and C, this was not in fact confirmed by the BSR until 19 November 2025.[19]Solicitors for Woodland wrote to the Defendants on 3 December 2025, and issued its application to adjourn just over a week later. The application was issued around 6 months prior to trial. Whilst I accept that the initial communication to the Defendants might conceivably have been sooner, it is readily understandable that the rejection from the BSR, which I accept came as a considerable surprise, would have warranted careful thought as to the appropriate course of action. I do not accept that the application was materially delayed so as to give rise to a factor which outweighs against Woodland.[20]I note that, at least on the evidence currently available, Mr Patten KC for HCD described the application, and which for the reasons I have given I consider to be fair, as a “no fault” application. I emphasise, however, that this is a finding limited to the context of this adjournment application. It may be that Unite, or other defendants, press an argument at trial in relation to the damages claim for e.g. professional fees or other aspects of the claim (including the costs of the adjournment of quantum, which are to be reserved) that the BSR rejection was an inevitable result of submitting a flawed proposal, such that in this sense the fact of the rejection and any case management determination resulting therefrom is Woodland’s “fault”. This argument obviously remains open to them.

Next Steps with the BSR

[21]Woodland set out what it considered to be the likely next steps and the time that those steps would take. This evidence was not challenged substantively.[22]Having reviewed the documentation provided by the BSR, there is force in Ms Packman KC’s submission that it presently remains unclear what exactly the BSR requires. At present, the LFB appears unwilling to engage in multidisciplinary meetings to discuss the scheme, which will add to Woodland’s difficulties.[23]Mr Rahemtulla explains that, notwithstanding, it is Woodland’s hope that the BSR can be persuaded to accept Woodland’s remedial scheme if further justification for the scheme is provided and BSR’s requests for further information are answered. I accept that Woodland is taking various steps to maximise its chances of success, the detail of which does not matter for the purposes of this application. In light of the work which I consider reasonable, Woodland is targeting 16 March 2026 as the date for resubmission of the scheme to the BSR. Assuming the resubmission takes place as planned, and the BSR meets its eight-week target for dealing with applications, Woodland would find out whether its remedial scheme was approved on 8 June 2026, the first day of the trial as presently listed.[24]However, I accept that realistically Woodland does not expect the BSR to meet its eight-week target, given that the BSR took four months to review and reject Woodland’s initial submission. Ms Packman KC points, additionally, to a recent report from a House of Lords committee found that the median time for the BSR to reach a decision on valid applications was 21.5 weeks for applications that were rejected, and 25.1 weeks for applications that were approved. If those sorts of timescales apply to Woodland’s resubmitted application, a decision would not be reached until well after the trial was concluded.

Adjournment: the Relevant Legal Framework

[25]The overriding objective is to deal with cases justly and at proportionate costs. CPR 1.1(2) provides that this includes, so far as practicable:
“(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate; (b) saving expense; (c) dealing with the case in ways which are proportionate; (d) ensuring that [the case] is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases…”
[26]Each party relied upon and referred to the judgment of Coulson J as he then was in Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 3070 (TCC) (which effectively incorporated the observations of Chadwick LJ in Boyd & Hutchinson v Foenander [2003] EWCA Civ 1516, which were also referred to by Mr Selby), in which he observed:
“… the court must ensure that the parties are on an equal footing; that the case – in particular, here, the quantum trial – is dealt with proportionately, expeditiously and fairly; and that an appropriate share of the court's resources is allotted, taking into account the need to allot resources to other cases. More particularly, as it seems to me, a court when considering a contested application at the 11th hour to adjourn the trial, should have specific regard to: a) The parties' conduct and the reason for the delays; b) The extent to which the consequences of the delays can be overcome before the trial; c) The extent to which a fair trial may have been jeopardised by the delays; d) Specific matters affecting the trial, such as illness of a critical witness and the like; e) The consequences of an adjournment for the claimant, the defendant, and the court.”
[27]I also bear in mind Bilta UK Limited v Tradition Financial Services Limited [2021] EWCA Civ 221

Lord Justice Nugee said at [30]:

“The guiding principle in an application to adjourn is whether progressing with the trial will be fair in all the circumstances, that the assessment of what is fair is a fact-sensitive one and not one to be judged by the mechanistic application of any particular checklist.”

Discussion

[28]It is said by Ms Packman KC that it would not be fair to proceed in the face of the present uncertainty created by the rejection of the proposed remedial scheme by BSR. Ms Packman accepts that it is obviously right in a typical case where remedial works have not yet been commenced, the Court will have to rely heavily on what the relevant experts say is the necessary and reasonable remedial response. The Court makes up its mind on the evidence and determines, insofar as necessary in order to order compensation, what remedial works are reasonably necessary and their cost.[29]It is, as Mr Selby KC rightly observes, inherent that such a prospective exercise will have a degree of uncertainty in it. Any scheme determined as the basis for the assessment of loss by the Court in advance of the works actually being carried out may eventually cost more or less due to a variety of factors, including a decision by the recovering party not to carry out the works either as assumed within the litigation or indeed at all. If the claiming party delays carrying out the works after receiving an award of damages and more stringent building regulations are introduced which will increase the cost, that is the claiming party’s risk. Once the litigation is underway, this risk in itself is unlikely to be sufficient to affect a case management decision about when the trial will be heard.[30]However, Ms Packman KC is also right that since the coming into force of the 2023 Regulations, there is to be a further factor which the Court may take into account in relation to remedial works to higher risk buildings such as the Development, namely the fact that it would be unlawful for a claimant in respect of such a building to implement any remedial scheme which has not been approved by the BSR. Whether this will impact case management is not a question of principle, but fact.[31]In many circumstances, it will not be particularly relevant. So, if the BSR had not made any decision at all by the upcoming date of trial, the case would have remained on course: the Court would have heard the evidence and determined what it (the Court) considered to be reasonably necessary work caused by such defects or collection of defects as liability had been established in respect of. No party was contending that the trial should necessarily have awaited the BSR’s determination so as to eliminate any uncertainty around the eventual scheme. Similarly, if the BSR had approved the scheme, the situation is orthodox. The fact of approval may make it more seem difficult for a defendant to argue that the remedial scheme approved would not sufficiently resolve particular defects (which, perhaps counter-intuitively, is an argument advanced by Unite in the present case), albeit it would not make such a conclusion inherently unlikely: ultimately, the BSR decision is not binding as to a question of fact to be determined by the Court. Moreover, 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”).[32]It is no doubt in light of the relatively limited anticipated impact of the existence or non-existence of BSR approval that Waksman J took the course he did at the CMC, at a time when it was not envisaged that the BSR’s intervention would be existential to the ability to adopt a particular remedial approach to mitigating the effect of the alleged defects.[33]However, the Court is faced with a different issue at present: the BSR has rejected the scheme which has to date been the subject of expert consideration and is due to be the subject of the Court’s consideration in June 2026. As long as the status quo is maintained, the one certainty that exists is that, at present, the Claimant is not legally permitted to carry out the pleaded remedial scheme.[34]I cannot accept the contention, as advanced by Mr Selby KC and supported by Ms Stephens KC, that this fact is, as a matter of principle, irrelevant. The following example, slightly different to the present facts illustrates the point beyond argument. Assume a scheme of mitigation is proposed by a defendant as the most cost effective and legally compliant scheme (as indeed, Unite has proposed in this case), which (unlike this case) was accepted in principle by the claimant and adopted as the scheme to seek approval of. The dispute at a forthcoming trial would not, therefore, include the nature of the remedial scheme itself, but assume there remained certain specific questions of quantification, as well as liability and other non-remedial scheme related quantum issues for determination. The broadly agreed scheme is then, as here, rejected by the BSR, with a clear indication that its inadequacies could only be rectified by a wholly different and more elaborate approach to remediation. The Court will know with certainty that the scheme hitherto agreed between the parties could not lawfully be implemented. Would, in this example, it be fair in all the circumstances for the Court to proceed to determine quantum in feigned ignorance of the fact known to all that, through no fault of the claimant, the pleaded losses now significantly underestimated its likely actual losses? The answer is obviously not. The question for the Court would be whether the obvious unfairness in proceeding could be remedied in advance of the start of trial. If not, an adjournment, at least of those parts of the dispute relating to the appropriate remedial scheme, to enable the claimant to investigate and evidence its losses in light of the new fact, would be necessary to meet the guiding principle identified by Lord Justice Nugee in Bilta.[35]It follows from this that I also reject the contention that adjourning the forthcoming trial equates to a determination by the Court that, as a matter of principle, no trial relating to remediation in which the BSR decision is outstanding can ever proceed. It emphatically is not. The fact of a pending, approved, or rejected BSR submission is just that: a fact. Its existence may be highly relevant, or largely irrelevant, to how the case is to be managed depending on the surrounding facts.[36]It is necessary also to address briefly the ambitious submission by Mr Selby KC, that in fact the rejection has now placed the parties on an even footing and allowing an adjournment would be positively unfair and contrary to CPR 1.1(2)(a). The submission is belied by Mr Selby KC’s written submissions, which he sought to row back from, in which he contended, “Of course, absent BSR approval, the Claimants will have the challenge of having to persuade the Court that they can seek damages in respect of a remedial scheme that they cannot lawfully carry out(without BSR approval)”. At a later point in his submissions, Mr Selby KC states:
“A claimant who commences proceedings in the circumstances of these Claimants always takes the risk that their case will not come up to proof.”
[37]These submissions reflect the reality that the only options pleaded by Woodland are(a) a scheme (which seeks to mitigate the effect of all the alleged defects) which it would not presently be lawful to carry out, and(b) a scheme (costed at £102m+) which is premised on correcting all the defects (effectively amounting to a rebuild). The first would not be a sound basis for awarding damages; and the latter is not a scheme advanced as reflecting the intention of Woodland, but merely as a comparator to demonstrate, it is said, the reasonableness of the mitigation scheme. As such, it seems an unlikely candidate for forming the basis of an award of damages. The Claimant is presently in the position – as Ms Packman KC candidly accepts – in which it has no pleaded basis upon which it would be able credibly to argue represents its likely loss. The obvious inference is that at trial Unite plans to submit that the Court can reject the two “options” presented by the Claimants, leaving it with the alternative proposal presented by Unite.[38]However, the dispute framed this way simply does not reflect reality. Whilst, as set out above, a Claimant always may face a risk of non-approval if that takes place after trial and the recovery of damages, that is not, contrary to Mr Selby KC’s submission, the same “risk” that has eventuated here. The fact of rejection prior to trial materially changes the way in which the Court will view the Claimant’s pleaded case. Quite apart from the impact on the Claimant, it may well leave the Court in an invidious position where it has no evidence reflecting the true likely loss. The difficulty articulated by Mr Selby KC as that facing Woodland in light of the rejection illustrates why it is unfair to insist that Woodland proceeds to trial (at least in respect of quantum) in circumstances where the situation has arisen through no fault of its own (although I repeat the comments above about “fault”).[39]That it is not fair to insist on proceeding to trial on this basis does not mean, either, that the litigation would remain in permanent stasis until a remedial scheme is approved. It simply means that it would be unfair not to permit Woodland the opportunity to regroup and re-plead a case on the quantification of its losses. In this context, it is significant that none of the Defendants opposing the adjournment advance a set of directions which between now and trial would permit this to happen in good order. That probably reflects the reality that, with around two months to the PTR, it would not be possible for Woodland to provide and cost a new remedial scheme, and for the experts to revise their liability and quantum reports to opine on the new scheme. It also, pragmatically, acknowledges that Woodland ought to be given the opportunity to provide the information sought by the BSR and, as it hopes, obtain approval of its existing scheme, which if successful, means the problem is resolved.[40]Set against the undesirability of proceeding (at least in respect of quantum) is the question of prejudice to the Defendants caused by the delay in ultimate resolution of the dispute.[41]Both Mr Selby KC and Ms Stephens KC submit, fairly, that delay itself is prejudicial and that it is inevitable that an adjournment of all or some of the case will inevitably increase costs. This is correct, and must be weighed in the balance. One specific additional feature of prejudice relied upon by Unite is that a potential witness (unnamed) is due to retire. It is not clear if or why this would necessarily prevent this witness from giving evidence, and in circumstances where the case is heavily expert driven, this argument was not, rightly, given particular prominence in Mr Selby KC’s oral submissions.[42]Mr Selby KC also indicated that it was of significance to Unite that Waksman J had ordered the present case to be heard prior to, and with a 7 or so month gap between, a related case (“the Highbury Proceedings”), which involved a similar modular construction being brought by a related entity to the Claimant, and in which UMS – but not UIS – is also a defendant. The other parties are not common. The timing as originally intended would be upturned, and the advantage to his clients lost, by fixing these proceedings second, as Woodland now propose. I have considered this factor as relevant to how to proceed.[43]It is not necessary for me, however, to consider Unite’s submission that the real reason the adjournment is being sought is Woodland’s belated appreciation in the difficulties of its case: this was not pressed orally, it being rightly acknowledged that this was something the Court would not sensibly be in a position to determine at an application of this sort.[44]Returning to the guidance in Fitzroy, for the reasons above I conclude that an adjournment (to some extent) is the only fair way of proceeding. Woodland is not at fault (for the purposes of this application) for the position it is in; the immediate consequences of the BSR’s rejection of its remedial scheme cannot sensibly be overcome by repleading and/or further evidence before the trial; the trial will be asymmetrical as a result of the unanticipated rejection of Woodland’s remedial scheme; and whilst an adjournment (to some extent) will increase cost and delay the eventual determination of the matter, there is no other specific prejudice identified by the Defendants which outweighs the prejudice to Woodland in being required to press its quantum case. The costs of the adjournment (rather than the costs of the application to adjourn) may be reserved so that the wider question of “fault”, not determined by the Court in this application, remains live should any of the parties wish to press it.

Split Trial

[45]In advance of the application, solicitors for RGCM sensibly raised the question of whether, if Woodland was facing difficulties with the quantum side of its case following the rejection of its remedial scheme, the parties might usefully make the most of the present listing by determining as many other issues as possible. That was, regrettably, not met with engagement by Woodland. Ms Stephens KC, whilst maintaining a primary position that there should be no adjournment of any part of the case, advanced the suggestion of a split trial in the alternative.[46]Mr Selby KC’s written submissions included an orthodox overview of the issues (albeit in a slightly different context) as follows:(1) The nature, scope and extent of each defendant’s duties;(2) Whether any Defendant was in breach of duty;(3) The nature, scope and extent of any defects in the Development;(4) Whether, and the extent to which, any defects in the Development are attributable to a breach of duty on the part of any Defendant;(5) Whether the Mitigation Remedial Scheme is a necessary and reasonable remedial scheme to deal with any defects that are proven to have been caused by a breach of duty on the part of any Defendant;(6) The loss, if any, for which each Defendant can be found liable to the Claimants (and the quantum of any such losses)[47]In at least broad terms, issues (1) to (4), in respect of which there is considerable dispute, are “liability” issues capable of being heard prior to issues (5) and (6) for determination at a quantum hearing. It is correct, as pointed out by Mr Patten KC, that only after (5) and (6) were determined could the contribution proceedings between the Defendants, to the extent relevant, be determined. Mr Selby KC adopted the alternative position advanced by RGCM as a preferable solution should the Court be of the view that as adjournment of some sort was necessary.[48]Mr Patten KC’s position on the adjournment, on behalf of HCD, was neutral; but he used his brief and efficient submissions to sound a note of caution in respect of a split trial, emphasising, fairly, that an important issue between the Defendants to the extent liability was established was the question of contribution. In circumstances where a critical aspect of the case overall fell to be determined in the second half of a split trial, Mr Patten KC submitted that the benefit of the almost inevitable additional costs was limited. I consider this below.[49]Ms Packman KC was particularly resistant to a split trial, perhaps strangely in circumstances where(a) Woodland needed the Court to sanction what on any view would be disruption to the Court’s allocated resources and(b) where (if Woodland is correct) it would achieve a finding of liability in the relatively near future, leading to inevitably increased commercial pressure on any of the Defendants found liable.[50]The Court was referred by Ms Packman KC to the judgments of Mr Justice Hildyard in Electrical Waste Recycling Group Ltd v Philips Electronics UK Ltd [2012] EWHC 38 (Ch) and of Peter Eggers KC sitting as a Deputy High Court Judge in Jinxin Inc v Aser Media Pte Limited & Ors [2022] EWHC 2431 (Comm). The points made reflect the usual considerations the Court must give to the assessment, which is essentially a pragmatic one. Thus, in some cases it may be sensible to weigh the prospective advantage of saving the costs of an investigation of quantum if liability is not established against the likelihood of increased aggregate costs if liability is established and a further trial is necessary; or consider the likely advantages and disadvantages in terms of trial preparation and management, including the extent to which a split trial may impose unnecessaryinconvenience and strain on witnesses who may be required in both trials, or lead to the risk of duplication, delay and the disadvantage of a bifurcated appellate process. Both judges rightly identified potential difficulties of defining an appropriate split or whether a clean split is possible as a relevant factor. Ultimately, the Court must consider the best course to ensure that the whole matter is adjudicated as fairly, quickly and efficiently as possible.[51]A further consideration applies in the present case, which faced neither judges in the authorities referred to the Court, which arises when a Court is faced with adding into the balance the obvious disadvantages of losing a long-planned trial date altogether towards which the parties have been working. This is unlikely to be a determinative factor, but it is an important one. The fact that, when considered at the outset of the proceedings, neither the parties nor the Court would have considered that this was a case in which a split trial was the most appropriate way to manage the litigation, is no bar to re-assessment when faced with what otherwise would be a significant delay to the determination of any of the issues.[52]Ms Packman KC submitted that the most relevant factors here were the difficulty in identifying an appropriate or clean split between the issues to be dealt with in the first and second part of the trial and the impact on costs.[53]As to the first point, the split can, in broad terms, be articulated as issues (1)-(4) above being the subject of the first hearing. Ms Packman KC argued that, to the extent that the Court finds that the Defendants acted in breach of duty, there would then be a two-stage causation exercise to undertake: first identifying the extent to which each breach caused fire safety defects in the Development, and then as to the causal link between each defect or category of defects and the remedial measures proposed. Whilst this may be so, it does not of itself create a difficulty in principle: the first of these stages sits comfortably as part and parcel of issues (1)-(4), and the second as part of issues (5) and (6).[54]Ms Packman KC also echoed the fair point made by Mr Patten KC about the determination of contribution claims which would by definition need to await the second hearing, which may reduce the commercial utility of determining issues of liability separately. This is precisely the sort of point which would, if considered at the outset of the litigation, have militated strongly against splitting the trial. However, in the present circumstances I do not consider that it outweighs the advantage of moving the litigation meaningfully forward.[55]This is particularly so when, realistically, if the matter did not proceed in June 2026, it could not be listed until mid-2027 at the earliest. This is because there is no suggestion that the Highbury proceedings can or should be adjourned (and in circumstances where there is only some overlap in the parties, this would likely be unfair at least on those non-common parties); and although the possibility of adjourning the trial to some point in November/December 2026 was explored, this was not practical because it would not leave any meaningful gap between these proceedings and the Highbury proceedings. This would be the worst of all worlds.[56]I accept that there would be likelihood of some of the same witnesses giving evidence in both tranches – in particular, some of the professional witnesses. However, particularly in circumstances where the same judge hears both tranches (as would be the intention), duplication of evidence and time (and therefore cost) should be minimised. Whilst there will be some inevitable inefficiency, the disadvantage of this is outweighed by the advantage of maintaining the present trial date to determine a significant amount of the dispute which otherwise is ready for trial, and can and should be determined in June 2026. There is at least some real prospect (given all the Defendants hotly dispute liability) that one or more of the Defendants will not be part of phase two at all, which would have a materially positive effect on efficiency of that phase.[57]Finally, Ms Packman KC more generally points to some collateral advantages to adjourning the whole of the trial, although advantages which she accepts would not of themselves justify an adjournment. These relate to(a) testing planned to be undertaken by Unite;(b) the potential of further inspections by RGCM and(c) the need for Woodland’s construction management and client representative expert to be replaced by reason of the sad death of their previous expert. However, in circumstances where it is not suggested that these factors are of themselves, or taken together, sufficient to prevent the progress of the hearing of liability in June 2026, their existence does not outweigh the benefits of progressing the litigation as far as it is possible to do.[58]Whilst, therefore, it may be an imperfect solution, the parties and the Court is faced with a situation in which all outcomes are imperfect. I regard splitting the trial in the manner set out above the least imperfect option.[59]Therefore, the application to adjourn the entirety of the proceedings is refused. The hearing in June 2026 will be retained, and will deal with liability issues, as identified in this judgment. The parties are to seek to agree a more granular list of issues on this basis, and any disagreement will be resolved by the Court at the PTR insofar as necessary. The parties are also to discuss the various options for listing the second phase, the timing of which will again be resolved by the Court if the parties do not agree.