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Pre-action Protocol for Disrepair Cases

This content applies to England & Wales

Pre-action Protocol for Disrepair Cases provides specific procedures that must be followed before taking action for disrepair.

The Pre-action Protocol for Disrepair Cases applies to all civil claims and counter-claims for disrepair on residential property situated in England and Wales, brought by tenants, leaseholders and members of their families. However, it does not applies to counterclaims or set-offs in claims that are brought as part of other proceedings (eg possession proceedings for rent arrears).

It applies equally to claims allocated to the small claims track, the multi-track or the fast track. Before using the Protocol, tenants should ensure that their landlords are aware of the disrepair.

The Protocol sets out specific procedures and timetables that must normally be adhered to from the date the letter of claim is sent. It provides detailed instructions and specimen letters that advisers can adapt as appropriate. The court expect the parties to a claim to comply with the Protocol as far as possible and can take into consideration unreasonable non-compliance when making management direction or costs orders.

Negotiation and alternative dispute resolution

Litigation in court should be a last resort and, save in urgent cases, a claim should not be issued while a settlement is still actively being explored.The Protocol states that efforts should be made to resolve disputes over disrepair before starting court action. Both tenants and landlords may be required by the court to provide evidence that alternative dispute resolution has been actively considered. Where possible, tenants/claimants should:

  • consider using mediation or other forms of alternative dispute resolution
  • use landlords' official complaints procedures
  • use the 'right to repair' scheme (see 'the right to repair scheme' on the page on Local authority tenants for details), and/or complain to the Ombudsman (see the section Complaining to the Ombudsman) or local authority environmental health department as appropriate.

Letter of claim

The tenant must give the landlord notice of her/his intention to take court action as soon as possible. This is in addition to having reported the disrepair to the landlord and having allowed a reasonable time for the works to be carried out.

Although an early notification letter is not required, it may be appropriate for the tenant to send it to the landlord and followed up with a detailed letter of claim, setting out the full details of the case.

A specimen letter of claim can be found in Annex A of the Protocol. The tenant should send to the landlord a copy of the Protocol, if there are doubts as to  whether the landlord has access to it (for example, if the landlord is an individual or a small organisation).

Landlord's response

The landlord should reply within 20 working days of receiving the letter of claim (receipt is deemed to have taken place two days after the date of the letter). The landlord's reply should:

  • when the landlord is not an individual, send the contact details of the designated person elected as point of contact for the tenant and her/his legal representative
  • disclose all relevant documentations
  • respond to any proposals by the tenant regarding the use of single joint experts (see inspections, below)
  • confirm whether s/he accepts liability and, if so, outline what remedial action s/he intends to take.

If no response is received within 20 days, or the matter is still not resolved, the next step is to begin court action in the normal way. See the section on Preparing for court for more information.

Inspections

Although it is not always necessary, in many cases, an expert (such as a surveyor) will need to inspect the premises to assess and provide evidence of disrepair. Both parties must give reasonable access to the property. Where possible, the parties are encouraged to:

  • provide a single set of instructions to a joint expert, or
  • provide separate instructions to a single joint expert or, failing that
  • arrange an inspection by separate experts at the same time.

A specimen letter of instruction of expert is contained in Annex B of the Protocol.

The property should normally be inspected within 20 working days of the landlord's receipt of the letter of claim. However, it may be appropriate for the tenant to arrange an earlier inspection if:

  • the disrepair poses a serious risk to health and safety
  • the tenant is seeking an interim injunction, or
  • it is necessary to carry out an inspection urgently in order to preserve evidence.

Costs and time limits

If the tenant's claim is successful, the landlord will normally be ordered to pay the tenant's legal fees, experts' fees, and loss of earnings, although in the small claims track any legal costs are not usually recoverable. However, if either party fails to comply with the protocol or is deemed to have conducted themselves in an inappropriate manner, the court will expect an explanation and may decide to reduce the costs awarded accordingly.

A court hearing civil proceedings can order a defendant to pay the claimant an additional amount, not exceeding a prescribed percentage of the amount awarded to the claimant by the court, if:[1]

  • the defendant does not accept the claimant's offer to settle, and
  • the court subsequently gives judgment for the claimant which is at least as advantageous as the offer.

Different prescribed amounts apply depending on whether the proceedings involve money claims only, both money and non-money claims, or non-money claims only.[2]

In addition, the Court of Appeal has held that, at least in disrepair cases, it may be appropriate to award pre-allocation costs for legal advice where the landlord has not fulfilled certain obligations to repair a premises before a claim but takes certain measures to resolve the issue of disrepair before the case is allocated to a track. This is a practical measure to ensure that a tenant is able to recover reasonably incurred costs where their case ends up in the small claims court but, had repairs not been undertaken, it would have been a fast-track issue due to the provisional level of damages.[3]

[1] s.55 Legal Aid, Sentencing and Punishment of Offenders Act 2012, in force since 1 October 2012 under art. 2(b) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 2 and Specification of Commencement Date) Order 2012 SI 2012/2412. 

[2] The Offers to Settle in Civil Proceedings Order 2013 SI 2013/93.

[3] Birmingham CC v Lee [2008] EWCA Civ 89.

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