Citation: [2026] EWHC 351 (TCC)
In a construction dispute concerning alleged fire safety defects in student accommodation, the court refused to adjourn the entire trial but ordered a split trial between liability and quantum issues. The Building Safety Regulator rejected the remedial scheme proposed by the claimants, meaning that an adjournment was the only fair way of proceeding, and a split trial was the least imperfect solution to balance fairness with efficient use of court resources.
Background
The Claimant/Applicant (“Woodland”) applied to adjourn the trial of this matter, which was listed to start on 8 June 2026, to the first convenient date after 1 June 2027 and for consequential directions. The application was 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 was neither supported nor opposed by the Second, Third and Sixth Defendants.
Woodland was the owner of a building (“the Development”) in Islington providing student accommodation. The works were carried out through the construction management method of procurement, which involved a “construction manager” and a series of “trade contractors”. RGCM Limited 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.
In the proceedings, Woodland alleged that the Development contained numerous fire safety defects arising from breaches of contractual, tortious and statutory duties by various Defendants. Woodland sought the costs of implementing a remedial scheme which it argued would directly remedy certain defects and mitigate the fire safety risks associated with others so as to render the Development compliant with Building Regulations. The total sum claimed was £35 million, of which £19.7 million was attributed to the “Mitigation Remedial Scheme”, said to be necessary to remediate the totality of the defects identified.
Of central relevance to the application was the fact that the Development was 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 was not disputed that, pursuant to Regulation 11 of the Building (Higher Risk Procedures) Regulations 2023, Woodland was required to obtain approval from the Building Safety Regulator (“BSR”) before commencing any remedial works.
On 30 October 2025, the BSR rejected the proposed remedial scheme. The reasons given included an alleged lack of information and substantiation, along with concerns expressed by the fire engineer (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 water mist system in lieu of sprinkler system.
At the heart of the application was the extent to which that rejection affected the viability of the current timetable to trial.
Decision (Constable J)
Application to adjourn the entirety of the proceedings was refused. A split trial to deal separately with (a) liability issues and (b) quantum issues was allowed.
- Adjournment: The court held that some form of adjournment was the only fair way to proceed. The fact that the BSR had issued its rejection prior to trial materially changed the way in which the court would view the pleaded case. The claimant was placed in a position in which it had no pleaded basis on which it could credibly argue for its likely loss through no fault of its own. Quite apart from the impact on the claimant, the court considered that it might otherwise be left in the invidious position of having no evidence reflecting the true likely loss. This was not an issue that could be overcome by re-pleading and/or the service of further evidence before trial. In those circumstances, it would not have been fair to require the claimant to proceed to trial, at least in respect of quantum.
- Split trial: Some of the issues in respect of which there was considerable dispute were “liability” issues capable of being heard prior to other issues to be determined at a quantum hearing. The court had to consider the best course to ensure that the whole matter was adjudicated as fairly, quickly and efficiently as possible. It held that the advantages of moving the litigation meaningfully forward, by determining a significant portion of the dispute that was otherwise ready for trial, outweighed the potential disadvantages of determining liability issues separately from quantum, as well as other trial preparation and case management disadvantages. This was particularly so when realistically if the matter did not proceed in June 2026, it could not be listed until mid-2027 at the earliest. While a split trial was an imperfect solution, the court regarded splitting the trial as the least imperfect option.
Representation
Claire Packman KC & Daniel Churcher (4 Pump Court) for the Claimant, instructed by Jones Day.
Jessica Stephens KC & Daniel Khoo (4 Pump Court) for the First Defendant, instructed by Reynolds Porter Chamberlain LLP.
Ben Patten KC (4 New Square Chambers) for the Second Defendant, instructed by Keoghs LLP.
Jonathan Selby KC (Keating Chambers) for the Fourth & Fifth Defendants, instructed by Walker Morris LLP.
Alexander Burrell (4 Pump Court) for the Sixth Defendant, instructed by Howes Percival LLP.
The judgment can be found here.