A landlord who raised concerns about the ‘unhealthy connection’ between housing disrepair solicitors and the surveyors they instruct has failed to have two claims struck out.
The defendant in Lancastle v Curo Group (Albion) Ltd had wanted the cases dismissed on the ground that the claimants’ solicitors had failed to engage with the pre-action protocol over the appointment of experts.
The cases highlight the level of friction between claimant and defendant lawyers in housing disrepair, which is increasingly being played out in courts.
Rebecca Rees, a solicitor from Hugh James representing the landlord, submitted that housing claimants were routinely breaching civil procedure protocol by instructing their own expert and entirely excluding defendants from the process. This was done to ‘tie the hands’ of defendant landlords and force them to either accept the claimants’ expert report or obtain their own report at significant cost and risk.
‘There is a complete failure to properly engage with the question of what is actually in dispute, or what expert evidence is required to properly resolve such issues,’ said Rees.
His Honour Judge Blohm KC, sitting at Bristol County Court, rejected the defendant’s application for summary judgment, saying there was enough evidence to support the claims. There was no abuse of process and the experts instructed were not done so in bad faith.
The judge did find that the claimants had breached the pre-action protocol, including through failing to supply fees or charging rates with the proposed experts’ CVs, and instructing them prematurely. But these breaches were not enough to justify the remedy of striking the claims, which would have been disproportionate.
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Civil Procedure Rules provide that expert evidence should be restricted to what is necessary and sets out how long parties should wait to instruct experts.
The two cases were heard together which raised common questions around housing disrepair claims.
In one, a tenant living near Bristol had instructed north west firm Bond Turner and claimed for a defective roof causing damp, mould and an insect infestation.
A Manchester-based surveyor was proposed as an expert in the letter of claim and the defendant given 20 working days to object. The landlord inspected the property for itself and found no actionable breach of obligation.
Nevertheless, the claimant went ahead and solicitors instructed an expert who assessed the outstanding repair costs at £2,760.
In the second case, a tenant from Bristol instructed Liverpool firm Satchell Moran which made a claim for faults in the property and advised the defendant it would instruct an expert from a Lancashire surveyor. The landlord asked for the claim to be put on hold until the internal complaints process was completed, but the claimant’s solicitors went ahead with a survey and the claim was estimated at between £1,000 and £5,000.
The defendant sought to strike out the claim, saying the claimant had broken with the protocol and intended to instruct its own expert ‘come what may’.
Satchell Moran solicitor Laura Walsh said in a witness statement that the expert carrying out the inspection was the only one available and pointed out that the defendant was able to instruct its own expert.
The claimants said the landlord was ‘trying to have its cake and eat it’ – on the one hand wanting to produce a report by an in-house surveyor but stopping claimants from relying on expert evidence.
The protocol, it was submitted, stressed the ‘speedy’ resolution of claims but here the defendant had neither admitted liability nor given any coherent reason for denying it.
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