Page 134 - Solving Housing Disputes

other area of law). However, it is, in our experience, not correct that housing
disputes are litigated in a notably adversarial manner. One of our concerns
about the HDS proposal is the limited consultation of practising lawyers upon
which it is based, and we consider that if the report had been informed by
more day-to-day experience of court- and casework, it would have been clear
that housing lawyers are not bitterly fighting every case to the nth degree.
The experience of HLPA practitioners is that housing lawyers on both sides
try, in virtually every case, to resolve the matter amicably outside court.
Relatively few cases go to a contested trial. It is, after all, the aim of every
tenant lawyer in a possession case to keep the client in their home – and thus
maintain the relationship between landlord and tenant, not dismantle it. The
proposal is therefore based on a mistaken premise.

6. We are also concerned that the proposed focus on a non-adversarial approach
in the HDS is to the detriment of other imperatives, such as the maximum
protection of occupiers’ legal rights. It is important to understand that by the
time a matter reaches court (or would reach the HDS) the parties are already
engaged in a dispute. Most lawyers will try to reduce, not increase, the level
of conflict, but the fact remains that ultimately the role of any “dispute
service” is to resolve that dispute by establishing and vindicating rights.

7. It is in any event entirely possible for non-adversarial processes to be built
into and/or further reinforced within the current framework of court
proceedings (as set out in Chapter 3 of the report). Indeed, it is the experience
of HLPA members that it is often only the threat of adjudication by the court
in an adversarial process (i.e. a trial) that makes parties engage seriously in
non-adversarial modes of alternative dispute resolution. We welcome the
proposals to make legal aid more readily available for mediation and we
consider that this would be a more achievable and pragmatic way forward
than creating a new tribunal system.

8. Holistic approach: another motivating factor for the proposal is the suggestion
that the courts can only deal with whatever single issue has been brought
before it, without resolving the underlying issues. Again, we consider that
this is based on a lack of understanding of the realities of practice. It is quite
true that housing cases are multi-faceted, but the court and lawyers understand
this and the system accommodates it. For example, when a client presents
with rent arrears, solicitors will enquire into other matters, such as disrepair,
mental health issues, and benefits problems. Undoubtedly the removal of
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