Claimants have a right to assert claims of disrepair and demand appropriate remedies, but proving these claims through expert evidence has historically been a hurdle. The role of expert witnesses, specifically surveyors, becomes critical in establishing the extent and implications of the disrepair.
For many tenants, issues of disrepair often go beyond mere inconvenience – they can directly impact health, safety, and overall well-being. Amid record numbers of housing complaints, claimants have had to advocate fiercely for their rights, proving that their living conditions are not just numbers on a complaint form, but real-life challenges that deserve attention. The pivotal point of contention in these cases has traditionally revolved around the standard of expert evidence. Landlords often contest claims, arguing that the expert assessments provided by tenants’ representatives lack credibility or fail to meet rigorous standards.
The pre-action protocol for Housing Conditions Claims is a framework designed to encourage the early resolution of housing disrepair disputes between tenants and landlords in England before resorting to court proceedings.
The protocol outlines specific steps and timelines parties are expected to follow, including:
- Tenants informing landlords of disrepair.
- Issuing a detailed letter of claim outlining the issues.
- Landlords responding within 20 working days, addressing liability, proposing remedial action, and considering compensation.
- Considering Alternative Dispute Resolution (ADR) like mediation.
- Arranging property inspections by experts.
In the recent cases of Lancastle v Curo Group (Albion) Ltd and Bailey & Bennet v Curo Places Limited, the defendants sought a dismissal because the claimants’ solicitors had failed to engage with the pre-action protocol over the appointment of experts.
In each of these two cases, the tenant's representative sent a letter of claim to the landlord. The landlord responded with its response to the allegations based on the landlord's own in-house survey. The landlord's solicitors had insisted that any attempt to unilaterally appoint an expert would be objected to and that the landlord should be allowed an opportunity to undertake the works without the costs of appointing an expert.
The court decided not to dismiss the claims despite the claimants breaching the pre-action protocol. It held that tenants were entitled to instruct their own experts as sole experts despite instructing them prematurely, but that the tenants breached the Protocol by failing to provide experts' fees, failing to engage with the landlord’s response, and failing to provide the landlord’s reports to their experts.
While the court acknowledged the breaches, HHJ Blohm, sitting at Bristol County Court, found that striking out the claims was not justified.
The court did, however, decide that the tenants should not be allowed to recover the costs of instructing and obtaining expert evidence, no matter the final outcome of the claim.
These cases show that the court expects compliance with the pre-action protocol, failure of which will be punishable by costs penalties.
See link to judgement:
https://caselaw.nationalarchives.gov.uk/ewcc/2025/48
