Pre-Action Protocol for Housing Disrepair Cases
Table of contents
Paragraph
INTRODUCTION
1
AIMS
2
SCOPE OF THE PROTOCOL
3
THE PROTOCOL
Alternative dispute resolution
4
Tenant’s letter of claim
5
Landlord’s response
6
Experts
7
Taking Stock
8
Time limits
9
Limitation Period
10
Costs
11
1 INTRODUCTION
1.1 This Protocol applies to residential property situated in England and Wales. It relates to claims by tenants and others in respect of housing disrepair. Before using the Protocol tenants should ensure that their landlord is aware of the disrepair. The Protocol is intended for those cases where, despite the landlord’s knowledge of the disrepair, the matter remains unresolved.
1.2 This Protocol describes the conduct the court will normally expect prospective parties in a housing disrepair claim to follow prior to the start of proceedings. It is intended to encourage the exchange of information between parties at an early stage and to provide a clear framework within which parties in a housing disrepair claim can attempt to achieve an early and appropriate resolution of the issues.
1.3 If a claim proceeds to litigation, the court will expect all parties to have complied with the Protocol as far as possible. The court has power to order parties who have unreasonably failed to comply with the Protocol to pay costs or to be subject to other sanctions.
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2 AIMS
2.1 The aims of this Protocol are to–
(a) avoid unnecessary litigation;
(b) promote the speedy and appropriate carrying out of any repairs which are the landlord’s responsibility;
(c) ensure that tenants receive any compensation to which they are entitled as speedily as possible;
(d) promote good pre-litigation practice, including the early exchange of information and to give guidance about the instruction of experts; and
(e) keep the costs of resolving disputes down.
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3 THE SCOPE OF THE PROTOCOL
3.1 A disrepair claim is a civil claim arising from the condition of residential premises and may include a related personal injury claim (see 3.5 below). Although most claims are brought by a tenant against their landlord, this Protocol is not limited to such claims. It covers claims by any person with a disrepair claim including tenants, lessees and members of the tenant's family. The use of the word “tenant” in this Protocol is intended to cover all such people.
3.2 The types of claim which this Protocol is intended to cover include those brought under Section 11 of the Landlord and Tenant Act 1985, Section 4 of the Defective Premises Act 1972, common law nuisance and negligence, and those brought under the express terms of a tenancy agreement or lease. It does not cover claims brought under Section 82 of the Environmental Protection Act 1990 (which are heard in the Magistrates' Court).
3.3 This Protocol does not cover disrepair claims which originate as counterclaims or set-offs in other proceedings i.e. where the tenant is seeking to have the compensation due for disrepair set against money claimed by the landlord (typically in a possession claim for rent arrears). In such cases the landlord and tenant will still be expected to act reasonably in exchanging information and trying to settle the case at an early stage.
3.4 The Protocol should be followed in all cases, whatever the value of the damages claim.
3.5 Housing disrepair claims may contain a personal injury element. If the personal injury claim requires expert evidence other than a General Practitioner’s letter, the Personal Injury Protocol should be followed for that element of the disrepair claim. If the personal injury claim is of a minor nature and will only be evidenced by a General Practitioner’s letter, it is not necessary to follow the Personal Injury Protocol. If the disrepair claim is urgent, it would be reasonable to pursue separate disrepair and personal injury claims, which could then be case managed together or consolidated at a later date.
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THE PROTOCOL
4 Alternative dispute resolution
4.1 The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation and if so, try to agree which form to use. Both the landlord and the tenant may be required by the court to provide evidence that alternative means of resolving their dispute were considered.
The courts take the view that litigation should be a last resort, and that claims should not be issued while a settlement is still actively being explored. Parties should be aware that the court will take into account the extent of the parties’ compliance with this Protocol when making orders about who should pay costs.
4.2 Options for resolving a dispute include the following—
(a) mediation: information about mediation can be found at http://www.civilmediation.org/contact.php
(b) for council tenants—
Local authority repairs, complaints and/or arbitration procedures.
The Right to Repair Scheme. The scheme is only suitable for small, urgent repairs of less than £250 in value. Information and leaflets about the scheme in England can be obtained from the Department for Communities and Local Government, Eland House, Bressenden Place, London SW1E 5DU. Tel: 0303 444 0000 (https://www.gov.uk/repair-council-property).
Information about the scheme in Wales can be obtained from the National Assembly for Wales, Cardiff Bay, Cardiff, CF99 1NA. Tel. 0845 010 5500 http://www.assemblywales.org/index.htm
In England, the Housing Ombudsman Service 81 Aldwych London WC2B 4HN Tel 0300 111 3000 http://www.housing-ombudsman.org.uk/
In Wales the Public Services Ombudsman for Wales. Tel. 0300 790 0203 http://www.ombudsman-wales.org.uk
(c) for housing association tenants and for tenants of qualifying private landlords—
Any complaints procedure operated by the landlord.
In England, the Housing Ombudsman Service, 81 Aldwych, London. WC2B 4HN Tel: 0300 111 3000 http://www.housing-ombudsman.org.uk/
In Wales, the National Assembly for Wales, Cardiff Bay, Cardiff, CF99 1NA. Tel. 0845 010 5500 http://www.assemblywales.org/index.htm
Information about repair rights generally is available free of charge from the following web pages: http://england.shelter.org.uk/get_advice/repairs_and_bad_conditions and http://www.communitylegaladvice.org.uk/en/legalhelp/leaflet04_1.jsp.
The former Department for Transport, Local Government and the Regions issued Good Practice Guidance on Housing Disrepair Legal Obligations in January 2002. Copies of the Guidance (ISBN 185112523X) can be obtained from Communities and Local Government Publications, PO Box 236, Wetherby LS23 7NB. Tel: 0300 123 1124. Fax:0300 123 1125. Textphone: 0870 1207 405. E-mail: product@communities.gsi.gov.uk. (free to download from the Communities and Local Government website at http://www.communities.gov.uk/publications/housing/deliveringhousingadaptations2).
A summary, Housing Research Summary No. 154, is available free on the Communities and Local Government website at the following link http://www.communities.gov.uk/archived/publications/housing/housingdisrepair. The Communities and Local Government website http://www.communities.gov.uk is a general source of information for landlords and tenants.
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5 Tenant’s Letter of Claim
5.1 It is recognised that disrepair cases can range from straightforward to highly complex, and that it is not always possible to obtain detailed information at an early stage. In order to avoid unnecessary delay and to ensure that notice of the claim is given to the landlord at the earliest possible opportunity, particularly where repairs are urgent, it may be appropriate for the tenant to send a letter notifying the landlord of the claim before a detailed Letter of Claim is sent.
5.2 The tenant should send to the landlord a Letter of Claim at the earliest reasonable opportunity. A specimen Letter of Claim is at Annex A. The letter may be suitably adapted as appropriate. The Letter of Claim should contain the following details–
(a) the tenant's name, the address of the property, the tenant's address if different, the tenant's telephone number and when access is available;
(b) details of the defects, including any defects outstanding, in the form of a schedule, if appropriate (See Annex C for a specimen schedule which can be used to inform the landlord of the disrepair);
(c) history of the defects, including any attempts to rectify them;
(d) details of any notification previously given to the landlord of the need for repair or information as to why the tenant believes that the landlord has knowledge of the need for repair;
(e) the effect of the defects on the tenant (including any personal injury claim by the tenant);
(f) the identities of all other persons who plan to make a personal injury claim and brief details of their personal injury claims;
(g) the details of any special damages (see the form at Annex D);
(h) the proposed expert(see paragraph 7);
(i) the proposed letter of instruction to the expert (See Annex B); and
(j) relevant documents disclosed by the tenant.
5.3 The Letter of Claim should also request disclosure from the landlord of all documents relevant to the disrepair including—
(a) a copy of the tenancy agreement including the tenancy conditions;
(b) the tenancy file;
(c) any documents relating to notice of disrepair given, including copies of any notes of meetings and oral discussions;
(d) any inspection reports or documents relating to works required to the property; and
(e) any computerised records.
5.4 Documents relating to rent arrears or other tenancy issues will not normally be relevant. Nothing in the Protocol restricts the right of the tenant to look personally at their file or to request a copy of the whole file. Neither is the landlord prevented from sending to the tenant a copy of the whole file, should the landlord wish.
5.5 A copy of the Protocol should be sent to the landlord if the tenant has reason to believe that the landlord will not have access to the Protocol e.g. because the landlord is an individual or small organisation. If in doubt, a copy should be sent.
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6 Landlord's Response
6.1 Where a landlord is not an individual, a person should be designated to act as a point of contact for the tenant (and their solicitor, if one is involved). The designated person’s name and contact details should be sent to the tenant and their solicitor as soon as possible after the landlord receives the Letter of Claim from the tenant.
6.2 The landlord should normally reply to the Letter of Claim within 20 working days of receipt. Receipt is deemed to have taken place two days after the date of the letter. The landlord's response should include at least the following—
(a) copies of all relevant records or documents requested by the tenant; and
(b) a response to the tenant's proposals for instructing an expert including—
i. whether or not the proposed single joint expert is agreed;
ii. whether the letter of instruction is agreed;
iii. if the single joint expert is agreed but with separate instructions, a copy of the letter of instruction; and
iv. if the appointment of a single joint expert is not agreed, whether the landlord agrees to a joint inspection.
6.3 The landlord must also provide a response dealing with the issues set out below, as appropriate. This can be provided either within the response to the Letter of Claim or within 20 working days of receipt of the report of the single joint expert or receipt of the experts’ agreed schedule following a joint inspection—
(a) whether liability is admitted and, if so, in respect of which defects;
(b) if liability is disputed in respect of some or all of the defects, the reasons for this;
(c) any point which the landlord wishes to make regarding lack of notice of the disrepair or any difficulty in gaining access;
(d) a full schedule of intended works, including anticipated start and completion dates and a timetable for the works;
(e) any offer of compensation; and
(f) any offer in respect of costs.
6.4 Failure to respond within 20 working days of receipt of the Letter of Claim or at all, is a breach of the Protocol (see paragraph 1.3) and the tenant is then free to issue proceedings.
6.5 The Letter of Claim and the landlord’s response are not intended to have the same status as a statement of case in court proceedings. Matters may come to light subsequently which mean that the case of one or both parties may be presented differently in court proceedings. Parties should not seek to take advantage of such discrepancies provided that there was no intention to mislead.
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7 Experts
General
7.1
(a) Parties are reminded that the Civil Procedure Rules provide that expert evidence should be restricted to that which is necessary and that the court’s permission is required to use an expert’s report. The court may limit the amount of experts’ fees and expenses recoverable from another party.
(b) When instructing an expert, the parties must have regard to CPR Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims 2014 at http:www.judiciary.gov.uk.
(c) In some cases it might not be necessary to instruct an expert to provide evidence of disrepair, for example, if the only issue relates to the level of any damages claimed. It may be advisable for tenants to take photographs or video footage of any defects before and after works.
(d) The expert should be instructed to report on all items of disrepair which the landlord ought reasonably to know about, or which the expert ought reasonably to report on. The expert should be asked to provide a schedule of works, an estimate of the costs of repair, and to list any urgent works.
Single Joint Expert
7.2
(a) If the landlord does not raise an objection to the proposed expert or letter of instruction within 20 working days of receipt of the Letter of Claim, the expert should be instructed as a single joint expert, using the tenant's proposed letter of instruction.(See Annex B for a specimen letter of instruction to an expert.)
(b) Alternatively, if the parties cannot agree joint instructions, the landlord and tenant should send their own separate instructions to the single joint expert. If sending separate instructions, the landlord should send the tenant a copy of the landlord's letter of instruction with their response to the Letter of Claim.
Joint Inspection
7.3
(a) If it is not possible to reach agreement to instruct a single joint expert, even with separate instructions, the parties should attempt to arrange a joint inspection, meaning an inspection by different experts instructed by each party to take place at the same time. If the landlord wishes their own expert to attend a joint inspection, they should inform both the tenant's expert and the tenant's solicitor.
(b) Should a case come before the court, it will be for the court to decide whether the parties have acted reasonably in instructing separate experts and whether the costs of more than one expert should be recoverable.
Time Limits
7.4
(a) Whether a single joint expert or a joint inspection is used, the property should be inspected within 20 working days of the date that the landlord responds to the tenant's Letter of Claim.
(b) If a single joint expert is instructed, a copy of the expert’s report should be sent to both the landlord and the tenant within 10 working days of the inspection. Either party can ask relevant questions of the expert who should send the answers to both parties.
(c) If there is a joint inspection, the experts should produce an agreed schedule of works detailing–
i. the defects and required works which are agreed and a timetable for the agreed works
ii. the areas of disagreement and the reasons for disagreement.
(d) The agreed schedule should be sent to both the landlord and the tenant within 10 working days of the joint inspection.
Urgent Cases
7.5 The Protocol does not prevent a tenant from instructing an expert at an earlier stage if this is considered necessary for reasons of urgency. Appropriate cases may include–
(a) where the tenant reasonably considers that there is a significant risk to health and safety;
(b) where the tenant is seeking an interim injunction;
(c) where it is necessary to preserve evidence.
Access
7.6 Tenants must allow the landlord reasonable access for inspection and repair in accordance with the tenancy agreement. The landlord should give reasonable notice of the need for access, except in the case of an emergency. The landlord must give access to common parts as appropriate, for example, for the inspection of a shared heating system. If the tenant is no longer in occupation of the premises the landlord should take all reasonable steps to give access to the tenant for the purpose of an inspection.
Expert’s fees
7.7
(a) Experts’ terms of appointment should be agreed at the outset, including the basis of charging and time for delivery of the report.
(b) If a single joint expert is instructed, each party will pay one half of the cost of the report. If a joint inspection is carried out, each party will pay the full cost of the report from their own expert.
7.8 Information about independent experts can be obtained from—
(a) The Chartered Institute of Environmental Health, Chadwick Court, 15 Hatfields, London. SE1 8DJ Tel: 020 7928 6006 http://www.cieh.org/about_us.html. Ask for a copy of the Consultants and Trainers Directory;
(b) The Expert Witness Directory http://www.sweetandmaxwell.co.uk/our-businesses/directories.aspx
(c) The Royal Institution of Chartered Surveyors, 12 Great George Street, Parliament Square, London. SW1P 3AD, Tel: 024 7686 8555 http://www.ricsfirms.com/ Ask for a copy of the relevant regional directory.
Taking stock
8 Where the procedure set out in this Protocol has not resolved the dispute between the landlord and the tenant, they should undertake a review of their respective positions to see if proceedings can be avoided and, at the least, to narrow the issues between them.
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Time limits
9
(a) The time scales given in the Protocol are long stops and every attempt should be made to comply with the Protocol as soon as possible. If parties are able to comply earlier than the time scales provided, they should do so.
(b) Time limits in the Protocol may be changed by agreement. However, it should always be borne in mind that the court will expect an explanation as to why the Protocol has not been followed or has been varied and breaches of the Protocol may lead to costs or other orders being made by the court.
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Limitation period
10
(a) There are statutory time limits for starting proceedings (‘the limitation period’). If a tenant starts a claim after the limitation period applicable to that type of claim has expired, the landlord will be entitled to use that as a defence to the claim. In cases where the limitation period is about to expire, the tenant should ask the landlord to agree not to rely on a limitation defence, so that the parties can comply with the Protocol.
(b) If proceedings have to be started before the parties have complied with the Protocol, they should apply to the court for an order to stay (i.e. suspend) the proceedings until the steps under the Protocol have been completed.
Costs
11 If the tenant's claim is settled without litigation on terms which justify bringing it, the landlord will pay the tenant's reasonable costs. The Statement of Costs Form N260 available on the HMCTS website can be used to inform the landlord of the costs of the claim.
