Coastal 2 – The arguments

This blog is about what I have dubbed “Coastal 2”.  To recap: in Coastal 1, the High Court found that those RSLs which had failed to provide electrical condition reports to their occupiers as required were unable to charge rent for that period because the property was deemed unfit for human habitation.  Coastal 1 is being appealed.  I am told (and haven’t looked this up) that the appeal is to be heard in Cardiff on 10th-12th February 2026 – on one view, that illustrates the seriousness of the issues that the Court of Appeal has decided to uproot itself from London, or/and it illustrates the sensitivity to the Welsh jurisdiction.  And, it is listed for three days …

In Coastal 2, the question is whether the money paid as “rent” when not lawfully due should be returned to the payer occupiers.  This is the money question.  Remember that, if rents were not due, there is at least £50million at stake, and the future of the social housing sector potentially.  This is a massive deal being played out in the courts but will have significant reverberations (if the Claimants win) for Welsh social housing providers and provision.

The trial was last week – I was moving so couldn’t attend.  Inside Housing carries articles which contain some of the arguments, and I don’t have any inside knowledge.  However, it appears to have proceeded how one might have expected.  In essence, if the payments were not due but received, then the claim is for restitution for money had and received. The money was paid in a mistaken belief that it was due when it was not due.

IH suggests that the defence to this claim was that the mistake was not causative of the payments – that is, the Claimants would have paid anyway.  I can’t help but feel that is not a sympathetic argument to adopt; and, although it might work in this claim (?), it will give rise to other satellite litigation on its back.  A further argument appears to have been, again according to IH, that “… Welsh government guidance did not make a change in duty for landlords to provide electrical safety reports to tenants clear”, which would, on any view, be an interesting method of statutory interpretation.  Presumably also – although this isn’t reported – the landlords will have argued that they have changed their position on the back of the payments.  The final argument appears to be something to do with Article 1 of the First Protocol to the Human Rights Act 1998 – the right to peaceful enjoyment of possessions and the right not to be deprived of those possessions – but, if they were not entitled to receive the rents in the first place, then there will need to be some neat legal manoeuvring here.  If you remember from way back, this was one of those arguments left hanging in Coastal 1.

[I just want to make a slightly academic point.  The leading advocates in this case, Justin Bates KC and Ranjit Bhose KC (I’m afraid that I don’t know who their juniors are, but would namecheck them if I did), are outstanding housing lawyers.  My point is not to blow wind up them but to note that this is housing law doing restitution.  Or, to put it another way, housing law is a “destination subject” – we housing lawyers have to be able to bring a wide range of legal knowledge to a housing dispute.  Or, to put it another way, as I have done in academic writing, there isn’t really such a thing as “housing law”, just a range of other scattered legal principles to which what is sometimes called “housing policy” provides a fulcrum.]

Judgment is expected in October/November.