A recent County Court judgment reviewed the pre-action protocol for housing conditions claims (England) and the consequences of breaching it. 

The decision related to two joined cases (Lancastle v Curo Group and Bailey & Bennet v Curo Places). As a County Court judgment, it is not binding, but is likely to be raised and in future disrepair cases.

In each case, the defendant applied for the claims to be struck out, or for the claimant to be prevented from relying on expert evidence. Instead, they asked the court to order the appointment of a single joint expert, requiring the claimants to amend their Particulars of Claim. 

The defendants alleged that the claimants had breached the pre-action protocol by instructing experts without proper engagement and this was done deliberately to exclude the defendant from the instruction of experts.

Bailey & Bennet v Curo Places

In Bailey & Bennet, the claimants sent a letter of claim on 19 April 2023, proposing 'C7 Surveyors' as a single joint expert and included the CVs of ten surveyors under that heading. The letter did not include any details of fees or charging rates. The defendant’s solicitors replied on 27 April, noting 20-working-day protocol period would expire on 24 May. They said they wished to inspect the property using their own internal surveyor, arguing under paragraphs 7.1(a) and 7.1(c) of the protocol, which emphasises that expert evidence is not necessarily required in every case. They suggested their maintenance team should be given the opportunity to inspect and respond before considering whether an expert was needed and specifically objected to C7 surveyors on the basis that they were not local to the area and that no fees were provided.

On 20 May, the parties agreed an extension of the protocol response deadline to 6 June. In the meantime, Curo’s surveyor, Mr Francis, inspected the property. His report was not a part 35 report, and the Defendant argued it did not amount to 'expert' evidence under the protocol. Mr Francis found no defects and his report was sent to the claimants' solicitors on 2 June, with a response from the Defendant's solicitors. The letter stated that no expert was required, but if the claimants did think one was required, the instruction of a single joint expert could be discussed.

On the same day, the claimants' solicitors instructed their own expert, Mr Hedges MRICS, without sending him Mr Francis' report or notifying the defendant. Mr Hedges inspected in July 2023 and reported in early August, finding disrepair. His report was not served until December 2023. The defendant denied the defects, arguing the value of works had been inflated, that the instruction of Mr Hedges was unnecessary, premature, and disproportionate. They noted they had not been informed of the inspection date, which the claimants' solicitors described as 'an administrative error'. The claim was issued in August 2024 and in November, the defendant made its application.

Lancastle v Curo Group

In Lancastle, a letter of claim was sent on 10 April 2024. It proposed instructing a single joint expert from ‘TLB Services'  but did not identify a specific expert, provide a CV or details of fees and charging rates. On 17 April, the defendant's solicitors asked to delay the claim while Curo's internal complaints process was completed. They said Curo would inspect using its own surveyor and they could not respond on TLB as no surveyor details had been given and the cost was unknown. 

On 22 April, the claimant’s solicitors provided the CV of Mr Smit ARICS, but the defendant maintained that it was not yet appropriate to consider a single joint expert. On 9 May, the claimant's solicitors confirmed that Mr Smit would inspect on 28 May. The parties agreed that the landlord's protocol response would be provided by 21 May. On that date, the Defendant sent a report from Mr Francis after an inspection on 28 April. Mr Francis found minor defects. The defendant stated that expert evidence was unnecessary and the claimant could have the proposed works carried out. 

However, on 6 June, Mr Smit sent his report, finding items of disrepair and costs of works of £2,901. The claim was issued on 3 October 2024 and the parties agreed an extension of time for the defence to 28 November. On 5 December, the defendant issued their application.

 Court's findings

The court held that the claimants had breached the protocol because they:

• Failed to provide details of fees or charging rates with expert CVs.
• Instructed their experts before the agreed protocol extensions expired.
• Did not notify the defendants that they disagreed with their responses or proposals before instructing experts.
• Failed to share the defendants’ in-house reports with their experts, risking flawed or incomplete expert evidence.

Sanctions ordered

• Claimants could not recover the costs of their experts, regardless of the litigation outcome.
• Any CPR 35 questions put to the experts by the defendants would have to be paid for by the claimants.

Key takeaways

1. The court will only allow expert evidence to be adduced if it considers that it is reasonably required to resolve the proceedings (CPR 35.1)
2. The initial 20-day response period can be extended by agreement. If it is extended, the timetable for expert instruction is also extended.
3. The appointment of an expert must be in good faith, and the protocol is based on the presumption that at the initial stage, expert evidence will usually be from a single joint expert or joint inspection.
4. If the defendant objects to the claimant’s proposed single joint expert, the parties must negotiate an acceptable single joint expert and act reasonably in this.
5. Claimants should consider and respond to the defendant’s 6.3 response.
6. Where a defendant’s in-house report denies defects or proposes limited works, it may be reasonable for the claimant to instruct their own expert.
7. Where there is an in-house report disclosed, this should be sent to the expert, and they should be asked to comment on it.
8. A defendant can rely on an in-house expert at trial if the report complies with CPR 35 (see Field v Leeds City Council (1999) 32 HLR 618).
9. Under paragraph 7.7(a) of the Protocol, the expert's fees should be agreed at the outset. Letters of claim should therefore set out hourly rates or estimated costs.
10. Claimants should provide details of specific named experts with CVs, not just an organisation name.
11. Experts should be instructed to advise on the dispute as it stands between the parties and must be given the defendant’s response and any reports to consider.
12. Failure to comply with the points made above may give rise to sanctions, including losing the right to recover expert costs.
13. The use of an in-house report does not prevent a defendant from also relying on a formal expert’s report.

For more information

For more information on the pre-action protocol for housing conditions claims (England), please contact me.