Better Intelligent Management Limited & Anor v Zaid Alothman Holding Limited & Ors

A repairing covenant is engaged where the subject matter has suffered physical damage or deterioration. A defect present at construction does not prevent later physical deterioration from amounting to disrepair. Once physical change for the worse is established, whether remedial works fall within the covenant is a matter of fact and degree. Loss of amenity or efficiency alone is insufficient, but the physical failure of a sealed glazed unit, including loss of its airtight inert-gas atmosphere, is physical damage and may constitute disrepair.

Long leaseholders claimed that defective windows in student accommodation were in disrepair and that liability lay under the relevant leases. HHJ Monty KC held that the defects were construction or installation defects which had not caused disrepair. On an earlier appeal, the decision was partly set aside and the issue of the nature and cause of the window-seal and glazed-unit failures was remitted: [2025] EWHC 392 (Ch).

On remittal, HHJ Monty found that the seals were probably defective when installed, that their failure caused loss of gas and condensation, and that the progressive manifestation was not physical damage. The central issue was whether the progressive failure of the seals and glazed units constituted disrepair.

1. Appeal allowed. The remittal judgment was set aside. The window seals and glazed units were in disrepair.
2. The applicable principles required a physical change in the windows so that their condition was different and worse than at an earlier time. Lack of amenity and efficiency alone was insufficient. Where physical change existed, the inherent-defect approach applied, and whether works were repair was a matter of fact and degree.
3. A defect in design or installation did not exclude disrepair where it caused subsequent physical damage or deterioration. The judge below had wrongly treated the progressive failure of the units and seals as merely the manifestation of an original latent defect.
4. The loss of the airtight inert-gas atmosphere between the panes was a physical change for the worse and physical damage to the glazed units. This constituted disrepair independently of any separate question whether reduced thermal efficiency or condensation amounted only to loss of amenity.
5. The accepted evidence showed an increasing number of failed units, particularly in opening casements, supporting progressive failure after installation. Even if loss of gas had occurred progressively after an earlier seal failure, that progressive loss would itself have been deterioration in the physical condition of the windows.
6. The hand-down hearing was adjourned to allow the parties to agree consequential orders, or to relist if agreement was not possible.

1. High Court, Chancery Appeals — The appeal from HHJ Monty KC’s remittal decision dated 29 September 2025 was allowed. The judgment was set aside and the issue was determined in favour of disrepair.
2. Earlier appeal — The original judgment of 7 May 2024 had been partly successfully appealed, and the issue concerning the window seals and glazed units was remitted to HHJ Monty KC: [2025] EWHC 392 (Ch) .