dean underwood - chartered institute of housing pdfs/presentations/repairs 2016... · dean...

Dean Underwood Barrister and Chair of the Social Housing Law Association

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Contact details:

Dean Underwood

Cornerstone Barristers

2-3 Grays Inn Square

London

WC1R 5JH

Tel: 020 7421 1835

Fax: 020 3292 1966

Email: deanu@cornerstonebarristers.com

Twitter: @deanunderwood01

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What we will cover …

• Causes of action:

- breach of tenancy (express or implied covenants to repair)

- nuisance and negligence

- statutory nuisance – not covered save in passing

• Disrepair proceedings:

- free-standing disrepair claims

- ‘set-off’ defences and counterclaims

- Magistrates’ Court complaints – not covered save in passing

• Case Studies (time permitting)

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Included within those topics will be…

• Information about:

- liability

- the quantification of damages (general and special)

- orders for specific performance of repair covenants

- evidence-gathering

- settling claims

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Repairing obligations (1)

• Express terms: “good condition and repair”? Arnold v Greenwich LBC [1998] 1 CL

383, QBD

• Section 11 Landlord & Tenant Act 1985:

• (1) In a lease to which this section applies there is implied a covenant by the

lessor -

• (a) to keep in repair the structure and exterior of the dwelling-house (including

drains, gutters and external pipes),

• (b) to keep in repair and proper working order the installations in the dwelling-

house for the supply of water, gas and electricity and for sanitation (including

basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and

appliances for making use of the supply of water, gas or electricity), and

• (c) to keep in repair and proper working order the installations in the dwelling-

house for space heating and heating water.

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Repairing obligations (2)

• Extent of s.11:

• Quick v Taff Ely BC [1986] QB 809, CA

• Irvine v Moran [1991] 1 EGLR 261

• Southwark LBC v McIntosh [2002] 1 EGLR 25

• Grand v Gill [2011] 1 WLR 2253

• Edwards v Kumarasamy [2015] EWCA Civ 20

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Repairing obligations (3)

• Notice:

• Morris v Liverpool CC (1988) 20 HLR 498, CA

• British Telecommunications plc v Sun Life Assurance Society plc

[1996] Ch 69

• Inherent and design defects

• Patch repairs

• Improvements

• Defective Premises Act 1972 s.4

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Miscellaneous obligations (1)

• Not fit for human habitation?

• Covenant for quiet enjoyment

• Implied obligation re communal facilities / means of access

• Contractors’ duty of care

• Nuisance and statutory nuisance

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Miscellaneous obligations (2)

• Making good decorative damage following repairs:

• McGreal v Wake (1984) 13 HLR 107

• Ensuring property in landlord’s control does not damage demised premises

• Tenant’s duty to act in tenant-like manner:

• s.11(2)(a) LTA85

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Damages

• Compensating for discomfort and inconvenience

• Wallace v Manchester City Council (1998) 34 HLR 1111

• English Churches Housing Group v Shine [2004] EWCA Civ

434; [2004] HLR 42

• Simmons v Castle [2012] EWCA Civ 1288; [2013] 1 WLR 1239

• Moorjani v Durban Estates Ltd [2015] EWCA Civ 1252; [2016]

HLR 6

• Limitation Act 1980: 3, 6 and 12 year limitation periods

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Minimising Costs

- Do the work!

- Respond to protocol letters

- Engage in the selection of joint experts

- Make and early and realistic offer to settle (CPR Part 36)

- Use injunctions to gain access: see s.11(6) LTA 85

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Experts

• Keep a list of reliable, independent experts

• chartered surveyors

• environmental health consultants

• In-house experts not experts for purposes of court proceedings

• Still helpful for them to:

• inspect and accompany independent expert

• advise legal team on any questions to be asked about the

expert’s report

• Insist that any expert appointed by court only has instructions to

report on those items pleaded by the tenant and no more

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Evidence

• Early collation and examination of records essential:

• pass to legal team with detailed instructions asap

• Stick to the facts: if access is an issue, give details

• Deal with each item of alleged disrepair systematically and in detail

• Ensure contractors keep good records!

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Pre-action Protocol (1)

• Pre-action Protocol for Housing Disrepair Claims

• Counterclaims not covered by Protocol

• … but, by section 4.2(a): landlords and tenants expected to act reasonably in exchanging information and trying to settle case at an early stage

• Protocol covers claims alleging:

• breach of covenants, express and implied

• breach of Defective Premises Act 1972

• nuisance and negligence claims

• but not statutory nuisance actions

Pre-action Protocol (2)

• Single joint experts - 3.6(d) and 4.6(b)

• Encourages use of alternative options, e.g. ombudsman - 4.1(b)

• Tenant must set out case:

• early notification letter

• letter of claim

Pre-action Protocol (2)

• If claim is settled without litigation on terms which would have justified litigating, landlord will pay the tenant’s reasonable costs or out of pocket expenses

• Costs? Legal fees or, on the small track claim, out of pocket expenses

• Out of pocket expenses? Expenses incurred as a result of the claim (e.g. loss of earnings, expert’s fees) – para 4.10

• Court of Appeal case:

• Birmingham City Council v Lee [2008] EWCA Civ 891; [2009] HLR 15

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Practice Direction: Pre-action conduct

• Failure to follow the protocol can be met with a costs penalty and/or

award of interest: Protocols Practice Direction 4.5-4.6

- that works both ways!

- maximum rate of interest will be 10%

- possibility of indemnity costs

- avoiding or reducing the rate of interest

Small Claims Track (1)

• £10,000 limit

• Normally, no legal costs recoverable

• Small claims track unlikely where specific performance is sought if:

- value of claim is assessed at more than £1000, or

- the cost of repair works is more than £1000

- See CPR 26.6(1)(b)

Small Claims Track (2)

• Note:

(1) If claim also includes a claim by tenant against landlord for harassment or unlawful eviction then the claim will not be allocated to small claims track (CPR 26.7(4)

(1) Disputed possession claims will not normally be allocated to small claims track (26PD 8.1)

(1) Value of claim and counterclaim not aggregated, but largest considered (26PD 7.7)

Small Claims Track (3)

• Changes of circumstances may lead to re-allocation of the claim to

different track – 26PD 11.2

• Re-allocation can be by application or of court’s own initiative - CPR

26.10; 26PD 11.2

• If allocated to small claims and then re-allocated to another track,

then small claims costs principles cease to apply from date of re-

allocation – CPR 27.15

Settlement: Part 36 offers

• Protocol should encourage more informed offers

• Offer early if possible

• Set-off against arrears

• Re-allocate to “better” accommodation if necessary / appropriate

• Payment into court no longer required

• Non-Part 36 offers have to be considered too when considering the parties’ liability for legal costs

Set-offs (1)

• Importance of obtaining costs orders as you go along

• Interim orders in favour of landlords can be set off against any future

costs or damages awards in the claim

• not affected by publicly funded tenant’s entitlement to protection

under s.26 of the Legal Aid, Sentencing & Punishment of Offenders

Act 2012

• Discretionary in nature, however

Set-offs (2)

• CPR 40.13A and County Courts Act 1984, section 71

• Allows set-off against other judgments involving the same parties

• For example, set off against rent arrears judgment in respect of a tenant’s former accommodation

• No limitation issues concerning actions on judgments:

• Ridgeway Motors Ltd-v-Allis Ltd [2004] EWHC 1535 (Ch) at 21-22;

• Lowsley and another-v-Forbes (t/a L E Design Services) [1998] 3 All ER 897 at 906g

• Use counterclaims (e.g. rent arrears)

Writing to the Legal Aid Agency?

• In unmeritorious claims, may lead to legal aid certificate being discharged or revoked

• May also lead to delays whilst issue is investigated

• Funding available to “pursue the protocol”

• No funding for small claims track cases

Costs

• Seek percentage reduction?

- Tenant ‘over-egged the pudding’ or failed on some points

- Claim over-valued

- Late amendments or clarification of case needed

- Some fault on T’s part – e.g. re access

Thank you for listening!

Any questions?

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Contact details:

Dean Underwood

Cornerstone Barristers

2-3 Grays Inn Square

London

WC1R 5JH

Tel: 020 7421 1835

Fax: 020 3292 1966

Email: deanu@cornerstonebarristers.com

Twitter: @deanunderwood01

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Dean Underwood Barrister and Chair of the Social Housing Law Association

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