Housing disrepair claims and experts

Bethan Gladwyn examines the right approach to experts in housing disrepair claims, in light of a circuit judge's guidance in two joined cases.

Hugh James has dealt with housing disrepair claims throughout the past 40 years. Whilst there was a small peak in claims in the early 2000s, it was nothing compared to the huge rise in claims we have seen in the past six or seven years. We now deal with 30 times as many claims each year as we did in 2016.

Disrepair claims are a significant cost for all stock holding local authorities and for registered social landlords in Wales and registered providers in England. Disappointingly, housing claims were excluded from the new fixed recoverable costs regime which applies to claims issued after 1st October 2023, meaning they are the last bastion of potential utter disproportionality. In our experience, the claim for costs in most cases will exceed the value of the work at stake and the damages combined several times over.

The role of experts in housing disrepair claims

One of the features about housing disrepair claims which has always concerned us is the fact that in almost every single claim there is an expert unilaterally instructed by the claimant. Once the claimant has their own expert, then unless the landlord accepts the contents of the report, the chances of a contested/issued claim increase dramatically and the landlord is left with the options (1) to incur the cost of their own report, (2) defend the claim on the basis of an in-house surveyor being their expert or (3) settle the claim even if they disagree with the expert. All involve significant cost and the first and second options involve litigation risk/exposure.

Both the English and Welsh pre-action protocols confirm that expert evidence is not always necessary (for example, if the defendant accepts repairs are necessary then photographs ought to suffice in many cases for the purposes of a court claim). Both the protocols and the civil procedure rules make it clear that the court can (and should) limit the expert evidence which will be permitted to that which is necessary. In fact, CPR35 provides that in all cases allocated to the small claims or fast track at court, permission will normally only be given for one expert and the Civil Justice Council guidelines confirm that single joint experts are the norm in small claims and fast track cases (which all housing disrepair claims are).

So why is it so unusual to have either no expert or a single joint expert in disrepair claims?

The answer normally lies in the fact that those representing Claimants regard paragraph 7.2 of each protocol as allowing them to instruct an expert after 20 working days no matter how the defendant responds to the letter of claim (and often without any further correspondence). That means there is normally a report unilaterally obtained before a Defendant has had a proper opportunity to have input into any instruction.

We have made numerous (largely successful) applications to the court in relation to this issue but each time having to have the same argument over and over; so we specifically asked for a Circuit Judge to review the conduct of the parties in the early stages in two cases to provide a judgment which might give guidance.

Bryant v Trivallis/Griffiths v Trivallis (unrep)

HHJ James, Circuit Judge in Cardiff has now given written judgment in the joined cases of Bryant v Trivallis and Griffiths v Trivallis. He agreed that a claimant cannot simply go ahead to instruct an expert after the expiry of the 20 working days from the letter of claim. The facts of the two cases will be familiar to those dealing with disrepair claims.

In the Bryant case, the defendant received a letter of claim in May 2022 which nominated an expert and provided a CV and draft letter of instruction. Within 20 working days (as provided by the protocol), the defendant provided a detailed response, including a schedule of repairs to be carried out. The defendant explained with reasons why they could not agree the Claimant’s nominated expert. The defendant’s primary position was that no expert evidence was required given that the property had been inspected by a qualified surveyor; if the claimant did not accept that the defendant nominated alternative experts for a joint instruction. The Claimant proceeded to instruct an expert (who was not the one they had nominated anyway) without responding to the defendant.

Griffiths related to very similar early conduct. The defendant was unable to respond within 20 working days of the letter of claim which was received in August 2021 but asked for an extension. The detailed response (including a schedule of works) was sent two months later, and three weeks before the claimant’s expert inspected the property (this time they did instruct the expert they had nominated). Again, the Claimant did not respond to the defendant.

In both cases, the claimant’s expert produced a report without considering the defendant’s response to the claim and the claims were subsequently issued. The Defendant applied to the court for an order debarring the claimant from relying on the report (and for orders requiring the claimant to re-plead their claim)

HHJ James held:

• It was inappropriate for the Claimant to plead the claim by reference to the expert report; the claimant must plead what items of disrepair there are, the basis on which they say those items are the Defendant’s responsibility and whether the disrepair remains outstanding
• The claimant ought not to have instructed their expert without advising the expert of the defendant’s schedule of work; alternatively the expert should not have prepared the report without considering that work. The adequacy of the work is fundamental to the specific performance claim
• There had been a wholesale disregard of the protocol by the claimants in both cases, and in particular:

• • It was not for the claimant to unilaterally impose a single expert
  • Where the defendant has provided an assessment of the property by a suitably qualified employee, it is incumbent on the claimant to set out why an expert is still necessary and to respond to the works proposed
  • There is no right for a claimant to veto the defendant’s proposed works, provided notice is given and any concerns are dealt with
  • Where the landlord confirms items of disrepair and provides a schedule of work, the necessity of an expert’s report can only be assessed once those works are completed
  • Once the defendant has responded to the claim, it is for the claimant to engage with the defendant as to why they say an expert is still required
  • If an expert is required, it should be a single joint expert unless there are cogent reasons and the court expects the parties to co-operate in this respect. Separately instructed experts are very much the exception.

The breaches of the protocol were serious and HHJ James denied the claimants permission to rely on the reports in both cases. The claimants were ordered to amend their claims and pay the costs of the applications.

Subsequently the Bryant claim was struck out for failure to provide an amended claim. A single joint expert in the Griffiths claim confirmed there was no disrepair (in other words, the defendant’s original assessment of the property had been correct). The claim has since been discontinued. Hence neither claim had any merit in the first place and ought not to have been issued.

One of the critical points in the judgment is that it makes it clear that there should be no expert involvement at all in cases where a landlord arranges work, or at least until that work is complete. If a claimant disagrees with the work, the claimant must explain why and explore that with the defendant but the claimant cannot refuse the work.

It is also notable that the judge underlined the need for the claimant to specifically plead whether the disrepair remains outstanding. We frequently find that issued claims do not acknowledge when work has been done, and instead pursue a claim for specific performance as if nothing had been done at all. In both the Bryant and the Griffiths claims, the work was scheduled but not completed before issue due to a refusal of access but the pleaded claim failed to acknowledge the work scheduled or set out why the claimant still sought an order for specific performance.

The approach underlined by HHJ James ought to save significant costs, and significantly reduce the prospect of fully contested claims. Where the landlord agrees that the issues raised in the letter of claim exist, it must be right that it is in the best interests of both parties for the landlord to do the required work and the claim then only needs to deal with when the disrepair was reported and whether works were completed in a reasonable time.

The case will hopefully also have an impact on costs assessments in claims which have been settled, in that it ought to be possible for a landlord to successfully argue that the costs of instructing an expert are not properly recoverable where the expert was instructed in breach of the protocol.

That might all take time as the message filters through.

Bethan Gladwyn is head of the housing management team at Hugh James.