The Pre-Action Protocol for Housing Disrepair Cases sets out certain steps which prospective parties to a housing disrepair case are expected to carry out before Court proceedings are issued. The Protocol encourages the parties to avoid unnecessary litigation, exchange information at an early stage and to keep the costs of resolving disputes down. The Protocol also promotes the speedy and appropriate carrying out of any repairs which are the landlord’s responsibility and aims to ensure that tenants receive any compensation to which they are entitled as quickly as possible.
Before using the Protocol tenants are encouraged to ensure that their landlords are aware of the disrepair and to consider whether options for having repairs carried out and/ or obtaining compensation are more appropriate.
When does the Pre-Action Protocol for Housing Disrepair Cases apply?
The Protocol applies to civil claims arising from the condition of residential premises and may include a related personal injury claim. It covers such claims made by tenants, lessees and members of the tenant’s family.
It does not apply to disrepair claims which originate as counterclaims or set-offs in other proceedings or claims brought under section 82 of the Environmental Protection Act 1990.
Where the case has a personal injury element the Pre-Action Protocol for Personal Injury Claims should be followed in relation to the personal injury element of the claim, unless the personal injuries suffered are insufficient to warrant a separate procedure and no expert evidence is needed beyond the letter of a General Practitioner.
If a limitation period is about to expire the tenant may commence Court proceedings without following the Protocol. However, in such circumstances landlords are encouraged to confirm that they will not rely on limitation as a Defence in subsequent proceedings and tenants are encouraged to ask landlords to agree to extend the limitation period.
What are the requirements of the Pre-Action Protocol for Housing Disrepair Cases?
Early Notification Letter
A Claimant is required to give notice of the claim to the landlord as soon as possible.
If the Claimant is unable to send a letter of claim setting out full details of the claim because he is awaiting information or where a repair is urgent, the Claimant is encouraged to send an early notification letter to the landlord.
The Protocol sets out what an early notification letter should contain. Specimen early notification letters are annexed to the Protocol.
The letter of claim
The tenant is expected to notify the landlord of his claim at the earliest reasonable opportunity by sending to him a letter of claim.
The Protocol specifies what information the letter of claim should contain. Specimen letters of claim are annexed to the Protocol.
The Landlord’s response
A landlord should reply to an early notification letter or a letter of claim, normally within 20 working days. This time will be extended where a single joint expert is appointed or whether experts agree a schedule following a joint inspection.
The landlord’s response should disclose all relevant records or documents including a copy of the tenancy agreement and documents or records relating to the notice given, the disrepair reported, inspection reports or requirements to the property.
If the tenant has proposed the instruction of an expert the landlord should indicate whether or not a proposed single joint expert is agreed and whether any letter of instruction provided is agreed. If the landlord is prepared to agree to a single joint expert but with separate instructions, a copy of his letter of instruction should accompany his letter of response. If the appointment of a single joint expert is not agreed the landlord should state whether he agrees to a joint inspection.
The landlord’s response should state whether liability is admitted and if so, in respect of defects. If the landlord disputes part or the entire claim he should give reasons for this.
If the landlord wishes to make any point regarding lack of notice of the repair or any difficulty in gaining access he should set out any such point in the letter of response.
Where liability is admitted the landlord should provide a full schedule of intended works, any offer of compensation and any offer in respect of costs.
Where the landlord is not an individual, a person should be designated to act as a point of contact for the tenant. Their details should be provided to the tenant as soon as possible.
Failure by a landlord to respond
If a landlord fails to respond to an early notification letter within 20 working days, the tenant is expected to send him a letter of claim.
The Protocol sets out detailed guidance regarding the use of experts. With the aim of minimising costs the Protocol sets out the circumstances where expert evidence may not be necessary and where expert evidence is required, encourages the instruction of single joint experts. Where the parties are unable to agree to the instruction of a single joint expert joint inspections by experts are recommended.
Alternative dispute resolution
The Protocol expects the parties to consider alternative dispute resolution procedure as an alternative to Court proceedings. The Courts take the view that litigation should be a last resort and may require parties to provide evidence that alternative means of resolving their dispute were considered.
The protocol sets out some of the options the parties may wish to consider for the purpose of resolving their dispute. These are discussion and negotiation, early neutral evaluation by an independent third party, mediation and the use of certain other procedures which includes the following:
- for council tenants, local authority repairs, complaints and/ or arbitration procedures and the Right to Repair Scheme (this applies for small, urgent repairs of less than £250 in value);
- for tenants of social landlords and for tenants of qualifying private landlords, complaints to the Independent Housing Ombudsman;
- for private tenants, complaints to local authority environmental health officers.
However, the Courts recognise that parties cannot and should not be forced to enter into any form of alternative dispute resolution procedure.
Where a tenant’s claim is settled the Protocol requires the landlord to pay the tenant’s reasonable costs or out of pocket expenses.
What happens if a party does not act in accordance with the Protocol?
The Court has a very wide discretion when it comes to awarding costs. When determining costs the Court will take into account the conduct of the parties including whether the parties have complied with the Protocol.
When considering whether a party has complied with the Protocol the Court will be concerned about whether the parties have complied in substance and is unlikely to be concerned with minor or technical shortcomings. The Court will also consider the proportionality of the steps taken compared to the size and importance of the matter, will take account of the urgency of the matter and will look at the effect of non-compliance on the other party.
A single minor breach by one party will not exempt the other party from following the Protocol.