Who inspects the inspectors?

June 4, 2025

Richard Dewsbery and Holly Sims explore why housing condition claims see the involvement of one or more (often two) experts.

The CPR states as follows:

“CPR 35.1 - Duty to restrict expert evidence

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

CPR 35.4 - Court’s power to restrict expert evidence

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.”

The Pre-action Protocol states as follows:

“2.1 The aims of this Protocol are to—

(a) avoid unnecessary litigation;

(b) promote the speedy and appropriate carrying out of any remedial works which are the landlord’s responsibility;

(d) promote good pre-litigation practice, including the early exchange of information;

(e) give guidance about the instruction of experts; and

(f) keep the costs of resolving disputes down.

7 Experts

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 35, CPR Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims (2014) https://www.judiciary.uk/wp-content/uploads/2014/08/experts-guidance-cjc-aug-2014-amended-dec-8.pdf

(c) In some cases, it might not be necessary to instruct an expert to provide evidence of the housing conditions, 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 adverse housing conditions 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 those works, 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.

(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.”

The CPR is worded in terms intended to restrict expert evidence to that which is necessary and reasonable and has a focus on a single joint expert.

However, when dealing with housing disrepair cases, the majority of claimants will unilaterally instruct an expert, usually by raising their instruction in the initial letter before claim - although occasionally this happens even before informing the landlord of their decision.

The Pre-action Protocol for Housing Conditions claims expects that claimants will initially inform their landlord long before any court proceedings commence, with a letter before claim. That letter of claim will outline details of the alleged disrepair, the reasons why the landlord has said to have knowledge of the need for repair, the effect of the disrepair on the claimant, details of any special damages, proposals to instruct a single joint expert and a draft letter of instruction.

It is important for the landlord to engage with these points at the pre-action stage. And one of the most important issues to address is a common issue which landlords face - that of an expert being instructed by the tenant without the landlord’s input.

The Protocol expects the landlord to reply to this initial letter within 20 working days (note this is working days and not calendar days). As part of this reply, the landlord should set out whether the proposed single joint expert is in fact agreed.

Both the pre-action protocol and the Civil Procedure Rules are clear that expert evidence should be limited to that which is necessary. The fact of whether or not a home is in disrepair is often factually very straightforward. What is often less straightforward is why this might be the case. How to put any disrepair right may also be an issue. For those two reasons, it is very common to see the parties rely on expert evidence – as to the fact of any disrepair, its cause, and what can be done to put it right.

A single joint expert is the preferred method of obtaining expert evidence, as the parties will hear one voice as to these things. However, there is mutual suspicion around the experts put forward. In practice, these suspicions usually result in the instruction of two experts.

Claimants (and their representatives) often have concerns about the independence of the landlord’s nominated surveyor (who is often an in-house expert – an employee of the landlord), who may be tempted to downplay the extent of any problems with the property.

On the other hand, landlords often see the claimant’s surveyor as a “hired gun”, drawn from a short list of experts who are known to be claimant-minded, who have expertise only in a narrow field (such as cavity wall insulation claims) and in some cases have financial ties to the claimant’s solicitor that go undisclosed.

It is interesting that concerns about the independence of some experts has not gone unnoticed. In April 2025 RICS issued a practice alert to its members, reminding its members of the legal, professional and regulatory obligations.The risks are higher where an expert is instructed in a large number of claims, all from the same firm of solicitors, especially if there are financial links that compromise their independence. This warning has been issued at the same time as the SRA has voiced its concerns over claimants having been sourced from “cold calling” – with those canvassers themselves sometimes producing “inspection reports” and claiming expertise that they do not possess.

So in disrepair claims two experts is often the “norm”. This is because the tenant’s solicitors will simply instruct their chosen expert 20 working days no matter how the landlord responds to the letter of claim. Frustratingly for landlords, this usually results in a report unilaterally obtained before a defendant has had a proper opportunity to have input into any instruction.

However, in the joined cases of Bryant v Trivallis and Griffiths v Trivallis, HHJ James, Circuit Judge in Cardiff, provided a written judgment giving guidance in housing conditions claims where a tenant instructs an expert without recourse to the landlord. It is of note that HHJ James’ remarks are not binding on other county court judges, but are persuasive – and should be used in resisting the claimant’s expert. This is especially the case in those situations where a claimant has simply gone ahead with their own instruction and inspection without considering – or in some cases, without even waiting for – the landlord’s observations.

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 regardless of the landlord’s proposals (using an expert who was not the one they had nominated anyway), and without responding to the defendant.

Griffiths related to very similar pre-action 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 ahead of an inspection of the property by the claimant’s expert. Again, the claimant did not respond to the defendant’s response letter.

In both cases, the claimant’s expert produced a report without considering the defendant’s response to the claim, including the works that the landlord proposed to do in any event, and the claims were subsequently issued. The defendant applied to the court for an order debarring the claimant from relying on the report (as well as for orders requiring the claimant to re-plead their claim, as the Particulars of Claim were in both cases inadequate).

HHJ James held:

It was inappropriate for a claimant to plead their claim simply 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 when the claim is issued;
The claimant ought not to have instructed an expert without advising their 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 any 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 raised by that claimant are dealt with;
Where the landlord confirms items of disrepair and provides a schedule of work, the necessity of having an expert’s report at all 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 also ordered to amend their claims by properly pleading the disrepair they were relying upon; in both cases, the claimants were ordered to pay the costs of the applications.

Subsequently, the Bryant claim was struck out for failure to provide any amended claim. A single joint expert in the Griffiths claim confirmed there was no disrepair - that, the defendant’s original assessment of the property had been correct, and the works proposed and carried out had been sufficient to remedy any problem with the property. 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 inspects the property and arranges for repair work to be done - 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 simply refuse to have the work done (as that would put them in breach of their tenancy agreement).

It is also notable in the two above cases that the judge underlined the need for the claimant to specifically plead whether the disrepair remains outstanding. Landlords are frequently facing claims that have been issued where the claim does not acknowledge when work has been done, and instead pursues claims for specific performance as if nothing had been done at all.

Alternatively, claimants often feel able to obstruct the repairs process, perhaps (erroneously) believing that their solicitor must be involved in or give assent to those repairs. 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.

So assuming that everything has gone wrong, and you face a hostile report from a “hired gun”, how practically can you achieve the above?: