Dean Underwood - Chartered Institute of pdfs/Presentations/Repairs 2016...  Dean Underwood Barrister

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  • Dean Underwood Barrister and Chair of the Social Housing Law Association


  • Contact details:

    Dean Underwood

    Cornerstone Barristers

    2-3 Grays Inn Square


    WC1R 5JH

    Tel: 020 7421 1835

    Fax: 020 3292 1966


    Twitter: @deanunderwood01


  • 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)


  • 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


  • 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.


  • 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


  • Repairing obligations (3)


    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


    Defective Premises Act 1972 s.4


  • 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


  • Miscellaneous obligations (2)

    Making good decorative damage following repairs:

    McGreal v Wake (1984) 13 HLR 107

    Ensuring property in landlords control does not damage demised premises

    Tenants duty to act in tenant-like manner:

    s.11(2)(a) LTA85


  • 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


  • 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


  • 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

    experts report

    Insist that any expert appointed by court only has instructions to

    report on those items pleaded by the tenant and no more


  • 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!


  • 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 tenants 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, experts fees) para 4.10

    Court of Appeal case:

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


  • 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)


    (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 courts 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 tenants 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 tenants 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 Ts part e.g. re access

  • Thank you for listening!

    Any questions?


  • Contact details:

    Dean Underwood

    Cornerstone Barristers

    2-3 Grays Inn Square


    WC1R 5JH

    Tel: 020 7421 1835

    Fax: 020 3292 1966


    Twitter: @dea