Toppan Holdings Ltd & Abbey Healthcare (

Toppan Holdings Ltd & Abbey Healthcare (Mill Hill) Ltd v Augusta 2008 LLP

Citation: [2025] EWHC 1691 (TCC)

Background Facts

Toppan Holdings Ltd were the freeholder of Aarandale Manor Care Home.
Abbey Healthcare were the leaseholder and operator of the care home.
Augusta 2008 LLP (formerly Simply Construct) were the design and build contractor responsible for the care home's construction.
Major fire safety defects discovered in 2018, including inadequate fire resistance, fire stopping, and other construction faults.
These defects posed significant safety risks to residents, affecting occupancy, preventing full use of bedrooms, and stopping an anticipated sale of the care home to BlackRock.
Extensive remedial works had to be carried out, causing operational disruption and suppressed occupancy.
Toppan claimed for loss connected to the aborted BlackRock sale, interest and finance losses.
Abbey claimed for loss of trading profits, abortive legal costs, and overdraft charges.

Court’s decision:
- The court found Augusta (Simply) in breach of contract and duty of care due to serious design and construction defects.
- Accepted that occupancy was suppressed from September 2018 due to the need to prepare for and carry out remedial works, not just from the start of the actual works.
- Abbey was entitled to claim on a "but for" basis, comparing actual trading profits to hypothetical profits absent defects.

Outcome on damages:
- Abbey’s loss of trading profits was largely accepted, subject to adjustments reflecting reasonable growth assumptions.
- Toppan’s claims for loss of sale and associated finance costs were accepted in principle.
- The court relied heavily on contemporaneous documents and detailed expert evidence from both valuation and accountancy experts.

Credibility of evidence:
- The factual evidence of Abbey’s finance director and project consultant was preferred; their testimonies were clear and credible.
- The court criticised Augusta’s lack of factual evidence and reliance on speculative points.

Occupancy impact and mitigation:
- Where serious defects create health and safety risks, early suppression of occupancy and marketing efforts can be reasonable mitigation, even before physical works start.

"But for" loss of profit analysis:
- Loss of trading profits can be assessed by comparing actual trading results to carefully modelled hypothetical scenarios that reflect reasonable assumptions about occupancy growth, fee levels, and market conditions.

Importance of contemporaneous documentation:
- Judges should give significant weight to objective contemporaneous records over reconstructed witness recollections.
- Consistent with the "Gestmin" approach (importance of documents over memory).

Contractor's notification duties:
- Contractors must notify insurers promptly when defects and claims arise (relevant to clause 6.13A of the building contract here).

Reliance on expert joint models:
- Modern approach encourages parties' experts to agree joint models and parameters wherever possible to simplify and clarify damages quantification.