The post-Building Safety Act courtroom

Woodland, the Claimant, uncovered numerous alleged fire safety defects within the higher risk building, a student accommodation in Islington (Development). Woodland designed a remedial scheme to remedy some of these defects and mitigate the associated fire safety risks. Woodland then commenced court proceedings against various parties involved in the Development seeking to recover the cost of the remedial scheme (some £19.7m out of a total claim of £35m). Given that the Development was classed as a “Higher Risk Building”, approval from the BSR was needed before Woodland could start any remedial works.

At the first Case Management Conference, Mr Justice Waksman had ordered that Woodland’s anticipated remedial scheme was to:

(i) be provided to the Defendants prior to submission to the BSR; and

(ii) form the subject of a properly formulated quantum claim.

Mr Justice Waksman decided that the quantum of the claim should be clearly particularised based upon the proposed remedial scheme whilst the application was under consideration by the BSR. He recognised that the BSR might require amendments to the proposed remedial scheme, but he doubted that the BSR would look at a considered document like the remedial scheme and decide “it is not worth the paper it is written on and everybody has to start again”. However, when making his decision, Mr Justice Waksman did not comment on the possibility of the BSR rejecting Woodland’s proposed remedial scheme and it does not appear that the parties themselves envisaged this possibility.

The remainder of the timeline proceeded as follows:

1. 7 March 2025 - The Claimant was to set out its proposed remedial scheme.

2. 20 June 2025 - The BSR application was not submitted until this date due to the complexity of the remedial scheme and the requirements of the new building control regime.

3. 7 August 2025 - The BSR responded to the application, but only to stipulate that each block in the Development needed a separate application.

4. 1 October 2025 - Two additional applications were submitted to the BSR for Blocks B and C.

5. 30 October 2025 – Significantly later than the intended 8 week period, the BSR communicated its rejection of the remedial scheme for Block A.

6. 19 November 2025 - Blocks B and C were also rejected by the BSR.

7. 3 December 2025 – Woodland wrote to the Defendants and, just over a week later, followed up with an application to adjourn the trial as a result of the BSR’s rejection of the remedial scheme. At this point the trial was only 6 months away (8 June 2026).

As a result of the BSR’s rejection, Woodland needed to amend and resubmit its application to the BSR. The judge accepted that given the amount of work involved, Woodland’s target date for resubmission of 16 March 2026 was reasonable. Therefore, based on the BSR’s eight-week target, if this resubmission was approved, this approval would only come through on 8 June 2026 (the trial date). Given the average time that was being taken for the BSR to approve such applications, at that time, it was anticipated that such approval would not be received until well after the trial date.

Mr Justice Constable highlighted the overriding objective in this instance – CPR 1.1(2) - noting its requirement to deal with cases justly and at proportionate costs.

In considering the application for an adjournment, the Court looked at the guiding principle stated by Lord Justice Nugee in Bilta UK Limited v Tradition Financial Services Limited [2021] EWCA Civ 221: “whether progressing with the trial will be fair in all the circumstances” and that the assessment is “a fact-sensitive one”. The parties also relied upon Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 3070 (TCC) which set out the following factors the Court should consider in deciding upon an adjournment to proceedings:

“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.”

Mr Justice Constable noted that (for the purposes of the adjournment application) Woodland was not at fault for the position it was in but that the BSR’s rejection needed to be grappled with in the context of this case. Here, the rejection so close to trial meant that Woodland no longer had a realistic basis upon which to quantify its damages.

Mr Justice Constable explored the uncertainty created by the BSR’s rejection of the remedial scheme. He noted that if the BSR had not made any decision by the date of the trial, then the Court would simply have had to examine whether the proposed remedial scheme was reasonably necessary. Likewise, if the BSR had approved the remedial scheme then the Court proceedings would have continued in the normal way – but, importantly, the fact of approval would not have meant that the Court was bound to find that the remedial scheme was reasonable. The BSR only looks at a remedial scheme to assess whether or not it meets the relevant criteria for their approval; this is a simple ‘yes’ or ‘no’ as far as the BSR is concerned. By contrast, the Court’s role is to determine whether the remedial scheme is reasonable or whether “the remedial solution is over-designed and/or…more costly than might otherwise be achieved by adopting a different solution, so as to make the claimant’s scheme unreasonable”.

Ultimately, on the facts of this case, the Court decided that it would be unfair to proceed to a full trial when circumstances had arisen that were outside Woodland’s control and had resulted in Woodland’s losses being not only unknown but potentially substantially underestimated. Here, the only fair course was to allow Woodland time to regroup, revise its position and re-plead its case.

Mr Justice Constable explored whether the proceedings could be salvaged through a split trial. He accepted that this was an imperfect procedural compromise but recognised the significant disruption that would flow from losing the trial date when the parties had already fully prepared their liability cases.

Ultimately, Mr Justice Constable decided that a split trial (with liability being dealt with on the original trial date, and breach and loss issues being dealt with at a later date) was the “least imperfect option”.

Whilst not setting any precedent for future cases impacted by BSR delays (the judge made it clear that he was not deciding that no trial relating to remediation in which the BSR decision is outstanding can ever proceed), the judgment signals the TCC’s willingness to adopt a pragmatic and proportionate approach to BSR-related disruption. Whilst the impact of a pending, approved or rejected BSR submission may, in the judge’s words, “be highly relevant, or largely irrelevant, to how the case is to be managed depending on the surrounding facts”, it can be expected that in cases such as this, where the case has reached an advanced procedural stage, the Court will where possible seek to keep core elements of the litigation moving forward.

That approach, however, comes with obvious litigation risks for claimants:

1. even if liability is established, recovery may still be delayed while the revised remedial scheme works its way through the BSR approval process;

2. a split trial may lead to duplication of work and costs; and

3. there is always the risk that the BSR rejects the revised scheme as well, triggering further delay and uncertainty.

The wider message from the case is significant. The involvement of the BSR in regulating the construction and remediation of higher risk buildings is not solely a regulatory consideration for parties— the BSR’s decisions now have the potential to reshape litigation strategy, disrupt trial timetables and materially influence the Court’s approach to case management, particularly on quantum issues.

Yet the decision is not anti-claimant. Far from discouraging parties from bringing building safety claims, the judgment demonstrates the TCC’s willingness to adapt procedure to the realities of the post-Building Safety Act landscape. Even where BSR intervention derails part of a claim, the Court will look for practical ways to preserve momentum in well-prepared litigation, even if those solutions are, in the Court’s own words, “imperfect”.

Finally, the judgment contains an important sting in the tail: BSR approval is not conclusive. Even where a remedial scheme has been approved by the regulator, the Court retains the final say on whether the scheme — and the costs claimed in respect of it — are actually reasonable.

The key practical impact of this case to a claimant, however, is that should the BSR reject a remedial scheme, this will cause a potentially considerable delay to the claimant being able to recover costs. Claimants should therefore be aware of this risk particularly in light of the current timescales involved in the BSR responding to/approving such applications which, despite measures being implemented to reduce delays, are still significant (1).

(1) Building Safety Regulator building control approval application data March to May 2026