Page 70 - Solving Housing Disputes

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providing the possibility of flexible and imaginative solutions. Pre-action
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processes for certain housing claims encourage parties to pursue ADR and
negotiate prior to commencing a claim. Court and tribunal judges are encouraged
to facilitate ADR and costs consequences flow from an unreasonable refusal to
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engage in ADR. Various ombudsmen schemes have a significant role in
maladministration claims and other complaints against housing providers,
investigating, advising and adjudicating a significant and increasing number of
cases per year. 183 Finally disputes relating to the repayment of tenancy deposits
are all handled online by one of three tenancy deposit protection schemes.

3.27 Notwithstanding its expansion across the justice system and agreed benefits,
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uptake of ADR at all stages of housing disputes remains unreasonably low.
This section of the report explores how that might be changed. It takes a broad
view of ADR, as including negotiation, mediation and early neutral evaluation.
Quite some time is spent on consideration of pre-action ADR, engagement and
negotiation, which is where a huge amount of work is currently done.

180 Beyond what the courts might be capable of achieving, see Dunnett v Railtrack PL [2002] EWCA
Civ 303.

181 Both part 2.10 of the Pre-Action Protocol for Possession Claims by Social Landlords and part 4.1 of
the Pre-action protocol for housing disrepair cases provides that “the parties should consider whether it
is possible to resolve the issues between them by discussion and negotiation without recourse to litigation.
The parties may be required by the court to provide evidence that alternative means of resolving the
dispute were considered. Courts take the view that litigation should be a last resort, and that claims should
not be issued prematurely when a settlement is still actively being explored”.

182 CPR 44.3(2) provides the general rule that the unsuccessful party should pay the costs of the successful
party, but rule 44.3(5) qualifies this, allowing costs to be varied, based on the behaviour of the parties
both before and during the proceedings.

183 There are several schemes which exist within the landscape, described in chapter 4. By way of
illustration of volume, in 2018 the Property Ombudsman took 29,023 customer enquiries (22% increase
on 2017), for which the scheme gave advice, signposted, provided local or early resolution on, and made
4,246 adjudications (up 16% on 2017), The Property Ombudsman, ‘Annual Report 2018’, available at
https://www.tpos.co.uk/images/documents/annual-reports/2018-annual-report.pdf

184 At the London regional training day for the FTT (PC) in 2019 we were told that 89 cases had been
listed for mediation in 2019, with a 73.8% success rate, but that figure represented only 4% of the total
number of Property Chamber cases.

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