HOUSING DISREPAIR PROTOCOL THE LANDLORDS PERSPECTIVE HOUSING LAW

HOUSING DISREPAIR PROTOCOL: THE LANDLORD’S PERSPECTIVE HOUSING LAW CONFERENCE 2004 NICK BILLINGHAM PARTNER DEVONSHIRES 15 December 2004

By way of reminder… (1) • CPR – into force April 1999 • Exhausting all avenues of settlement before issue of proceedings. Court action = last resort • Costs sanctions for premature issue of proceedings • Protocols = required procedures to be followed pre-issue to facilitate settlement and avoid unnecessary litigation • Various: Clinical Disputes; Medical Negligence & Personal Injury; Professional Negligence; Defamation; Construction & Engineering • Failure to comply with Protocols can result in costs sanctions

By way of reminder… (2) • Into force December 2003 (long time awaited) • “To encourage exchange of information…. at an early stage and to provide a clear framework…. to achieve an early and appropriate resolution…” • Aims: speedy resolution of disputes (= tenant gets their compensation and repairs get done)

What does it cover? • All civil disrepair (ie section 11 LTA 1985; breach of express terms; section 4 DPA 1974) including with personal injury • Tenants, lessees and members of tenant’s family • Not Magistrates Court proceedings (eg EPA 1990): CPR only apply to County and High Courts • Does not include counterclaims

The Landlord’s Experience – one year on • Particularising claims • Use of experts • Getting the works done • Managing the time table • Encouraging proactivity • Costs • What it means for landlords • A bit of fun

Particularising claims (1) Historically: • Lack of particularity in Claimant’s case • Letter before action (“ 14 days to get works done and pay damages or we sue”) • Special damages not particularised (“full particulars will be provided on discovery”) • Unwillingness on claimants’ part to quantify claim (“not for us to quantify claim…”) • Defendant might not know full detail of claim until witness statements served

Particularising claims (2) Under the Protocol: • More open dealings • Detailed letter of claim • Landlord can insist on letter of claim • Requirement that Claimant quantifies claim • Special damages

Use of experts • Historic distrust between solicitors over choice of experts • Mostly now able to agree • If comes to it, can still appoint separate experts • CPR experience - role better understood by most experts – quality has risen to the top • Specimen letter of instruction to expert

Getting the works done • Effect of use of SJE • Protocol time-table • Schedule of works can be prepared early – SJEs understand need for speed • Risks of Tomlin Orders – landlord will prefer to get works done • Access – Claimant’s failure to comply, application to Court with reference to non-compliance with Protocol

Managing the time-table • Anticipated difficulties with time for landlord’s response (20 days from LC) • In practice disclosure rarely a problem • Issue is effective assessment of liability and quantum • In practice Protocol permits delay until SJE has reported or receipt of the experts’ agreed schedule following joint inspection

Encouraging proactivity • On both sides • Claimant particularising claim • Landlord assessing liability and quantum • Gathering of evidence – witness statements • Early negotiation on basis of detailed understanding • Aversion to making admissions

Costs • Front loading? • In practice - Loss of scale costs - Higher rates permitted - Proportionality - Hidden agenda of “Access to Justice”

What it means for Landlords • Need to be more pro-active at earlier stage • Letter of Claim is the new summons/claim form/hot potato • Get the works done • Settle with tenants • Training

A bit of Fun • • • “With respect it is not a matter of protocol” “Actually, we don’t use the Protocol” “We have already appointed the single joint expert under the Protocol” alternatively “We propose our client’s expert as the single joint expert”