Page 63 - Solving Housing Disputes

can pursue a disrepair claim in the County Court in order to obtain damages and
an injunction to compel remedial work.

3.16 Tenant lawyers we spoke to expressed frustration at the frequency with which
costs arrangements for disrepair claims have been changed. 155 Under current
arrangements, disrepair is in scope only where there is a serious risk of harm to
the health and safety of a client or their family, and as a counterclaim to
possession, but not as a standalone claim for damages. Post-LASPO, disrepair
claims for damages are increasingly being provided for by practitioners acting
on Conditional Fee Agreements, 156 with practitioners able to claim a percentage
157
of the overall damages awarded, currently called an “uplift”. In 2019, the MOJ
issued a consultation on extending the Fixed Recoverable Costs regime, to new
158
parts of civil justice, including disrepair.

155 LASPO changed the arrangements for disrepair claims, which had historically been funded under
legal aid. Since 2010, the number of cases submitted to the Legal Aid Agency for funding for disrepair
claims has reduced 92%, see note 60 above. One of the key benefits of legal aid had always been the rule
that a defendant who won against a legally aided claimant would not recover their costs.

156 Brookes and Hunter, ‘Complexity, Housing and Access to Justice’ in Palmer, Cornford, Marique,
Guinchard (Ed), Access to Justice: Beyond the Policies and Politics of Austerity, (Hart Publishing, 2016).

157 Various reforms in recent years have tinkered with the percentage of uplift payable to claimant
lawyers. For instance, the Access to Justice Act 1999 removed legal aid for personal injury and
substituted regulated conditional fees to operate alongside legal aid, whereby the successful claimant
lawyer was entitled to be paid for work done on an hourly rate, plus a success fee up to 100%, and Legal
Services Act 1990 s. 58, see also Hodges, Delivering Dispute Resolution, (Hart, 2019) p. 140. Success
fees claimable under conditional fee agreements were considered by some to be unfair for defendants
and drove a perception amongst the judiciary that the costs of civil justice were disproportionate, see J
Sorabji, English Civil Justice after the Woolf and Jackson Reforms; A Critical Analysis (Cambridge
University Press, 2014), p. 201.

158 Fixed Recoverable Costs were a key element of the Jackson Reforms: Lord Justice Jackson, Review
of Civil Litigation Costs: Supplemental Report. Fixed Recoverable Costs (Judiciary of England and
Wales, 2017). The MOJ propose to extend fast track disrepair claims into a Fixed Recoverable Cost
regime, which will limit costs recovery to that prescribed in a grid, under either Band 3 (intermediate) or
Band 4 (complex) cases Ministry of Justice, ‘Extending Fixed Recoverable Costs in Civil Cases:
Implementing Sir Rupert Jackson’s proposals’, (March 2019), p. 13 and 14 available at https://consult.j
ustice.gov.uk/digital-communications/fixed-recoverable-costs-
consultation/supporting_documents/fixedrecoverablecostsconsultationpaper.pdf The proposal would
provide for fixed costs for activities such as pre-issue or pre-defence investigation, attendance of solicitor
at trial per day, drafting statement of case etc on the basis of a grid which sets out fixed costs for activities
based on which “Band” of case it falls into, p. 33.

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