Unfair to Assess the Unlawful: High Court Declines to Value Rejected Remediation Scheme

The High Court has deemed it unfair to proceed to trial to assess quantum for remedial works rejected by the Building Safety Regulator under section 31 of the Building Safety Act 2022 in GS Woodland Court v RGCM & Others [2026] EWHC 351 (TCC). The case provides important insight into the effect of BSR approval on procedural timetables, as well as the knock-on effects of BSR backlogs on the court system.

GS Woodland Court (“Woodland”) is pursuing seven defendants in relation to the design and construction of a modular student accommodation in Islington. Woodland claims that there are numerous fire safety issues across the development and alleges that these result from breaches of contractual, tortious and statutory duties by the various defendants. Woodland issued initial notification letters to the Defendants in March 2022 and issued proceedings on 9 June 2023.

By March 2025, Woodland had developed a ‘Mitigation Remedial Scheme’, ostensibly to try address the alleged fire safety issues and bring the development in line with the relevant Building Regulations.  This scheme amounted to £19.7 million of their £35 million claim. The development constitutes a Higher Risk Building (“HRB”) under Section 31 of the Building Safety Act 2022, meaning that any remedial works need to be approved at gateway 2 by the BSR before commencing. However, it did not make a gateway 2 application to the Building Safety Regulator (“BSR”) until the end of June 2025.

In October 2025, the BSR rejected the Mitigation Remedial Scheme, on the basis that it lacked information and substantiation. The London Fire Brigade also raised concerns as to potential unaddressed and newly introduced fire safety issues if the application was approved. In the meantime, the proceedings had been set down for trial commencing 8 June 2026.

Woodland intended to resubmit the scheme by 16 March 2026 but acknowledged that any decision by the BSR would unlikely be made before trial commencing considering the average turnaround time for BSR decisions (see our commentary on the BSR process in our article here).

Woodland therefore applied to adjourn the trial in full until the first convenient day after 1 June 2027.  This would allow time for BSR to make a decision on the resubmitted scheme. Multiple defendants opposed the application, arguing that the trial should proceed as listed.

Application to Adjourn

The requirement of BSR approval at gateway 2 for remedial works adds an extra dimension to the traditional quantum assessment at trial. Normally, courts are free to decide what future remedial works are reasonable before any works are carried out, even with uncertainty as to the proposed scheme. Uncertainty alone does not justify adjourning a trial.

However, as gateway 2 approval is a legal requirement for HRB remediation, a scheme could only be lawfully implemented if approved. If the BSR had not made a decision, this would be the type of uncertainty (as described above) that could not justify adjournment. However, the position differs where there is an express rejection and insufficient time for a claimant to re-plead its case on the quantification of its losses. Attempting to quantify at trial a scheme expressly rejected by the BSR would be to assess an unlawful scheme: it would not make sense to scrutinise the value of a scheme that is impossible to implement.

The court acknowledged the overriding objective in rule 1.1(2) of the Civil Procedure Rules to deal with cases justly and at proportionate costs and referred to case law on the principles of fairness in reaching its decision. Considering this, the court remarked that assessing quantum of an unlawful scheme is blatantly unfair, thereby rejecting the defendants’ assertion that the BSR’s decision is irrelevant to the court’s ability to assess the reasonableness of remedial works.

The court found that the BSR’s rejection rendered Woodland’s position on quantum untenable, as its only prepared remedial options are the now unlawful/rejected Mediation Remedial Scheme, or a full rebuild scheme (costed at £102 million+), which was not advanced by Woodland as being a reasonable alternative.

There was therefore held to be no credible basis on which Woodland could present true likely loss. The court remarked further that there is no alternative evidential pathway to allowing for a fair quantum assessment before trial. It also noted that adjournment presents risks, including cost increases, but noted that these cannot outweigh the unfairness of proceeding to consider quantum at present.

However, while the court accepted assessing quantum at the current time would prejudice Woodland, it accepted that the issue of liability could be tried separately without the need for BSR approval. It therefore rejected the application to adjourn the trial in its entirety, instead ordering that the trial on liability will proceed in June 2026. Quantum will be determined at a second trial after BSR acceptance (and subject to judgment on liability).

Key takeaways

The case demonstrates that the courts will be sympathetic to the complexity of the BSR process and the delay that this can cause on quantum.  It also emphasises an important caveat to the court’s ability to assess quantum in that, in order for it to scrutinise figures, they need to be viable in both law and practice.

However, the court, in discussing the relevance of the BSR’s gateway approval on its ability to assess quantum rejected Woodland’s assertion that if a remedial scheme is approved by the BSR it is prima facia a ‘reasonable’ scheme. Rather, it confirmed that BSR approval on a remedial scheme will be largely irrelevant as to whether the remedial scheme is reasonable/proportionate from a judicial perspective. Even if a scheme is approved by the BSR, claimants still need to evidence that the remedial scheme is not over-designed and is a proportionate and reasonable scheme. BSR approval is not irrelevant to this question, but it is not prima facie evidence that a claimant has complied with its duty to mitigate its losses.

Fundamentally, the decision demonstrates the significant impact that ongoing delays in the BSR’s approval processes continue to have on the progression and resolution of disputes within the court system. While the courts appear willing to exercise case management powers to order split trials on liability and quantum, this itself has the potential to increase costs and cause delays. In reality, the courts (and parties to these claims) face no good options given the ongoing BSR gateway delays. Despite proceedings being issued in 2023, it remains unknown when this case will finally be determined. The anticipated introduction of a Single Building Regulator in 2026 may offer some relief, but its effect on the current backlog and the wider implications for court proceedings remains to be seen.

For any queries or support regarding the points raised in this update and how these may directly impact your projects or contracts, please contact the authors, or your usual Beale & Co contact.