Claim fails where no evidence produced in support of losses

A lessee of residential apartments established that the freehold owner of a building was liable for the inability to let the apartments because necessary fire retardant materials had not been put in place.  However, it recovered nothing in damages because it provided no documentary evidence at all of the fact and extent of its losses.

The parties

In MSA Properties Ltd v The Drapery Northampton Ltd [2026] EWHC 1420 the Claimant was a freehold owner of a property, and the Defendant was the long lessee of the first to fourth floors.  

What happened

Part of the ground floor ceiling collapsed, revealing 7 rotten joists, caused by historic water leaks.  The Claimant sought permission to enter flats on the first floor to replace the rotten joists from above pursuant to its duty to repair as landlord under the lease.  The High Court granted the landlord a right of entry for 6 weeks to carry out those repairs.  

The Defendant's counterclaim

The Defendant had made a counterclaim for loss of rent arising from the inability to let the first floor flats following a fire service prohibition notice noting a lack of required fire-resistant materials to the ceiling.  On the counterclaim, found that the Claimant had failed to carry out these necessary fire retardant remedial works within a reasonable time, thereby materially interfering with the Defendant's right to quiet enjoyment by rendering the Flats unsuitable for use as sleeping accommodation.

The Defendant had however not produced any documentary evidence at all of the fact and extent of its loss.  The Court said it did not hold there was no loss, but no evidence for the counterclaim to succeed.  The Defendant therefore recovered no damages.

Why this matters

The case underlines a basic point that the Court will make rulings based on evidence, and that assessing damages is a separate question to liability.  It is not enough to simply assert a loss in a pleading and hope the Court will award it or to hope that a further opportunity to evidence losses will be given after the principal judgment.  

What evidence to provide and how to present it should be key considerations, and not overlooked by virtue of the main arguments being on the principle of liability arising.  The Burges Salmon property damage team can advise on these key evidential considerations to ensure a recovery is successfully made.

If you have any concerns about an ongoing damages claim or want to know more about how you might handle one in the future contact Chris Heitzman, a consultant in Burges Salmon’s Property and Asset Damage Claims Team.