Page 71 - Solving Housing Disputes

Pre-action engagement

3.28 Pre-action protocols were introduced by the Woolf Reforms to “build on and
increase the benefits of early, but well-informed settlements which genuine
185
satisfy both parties to a dispute.” However, the introduction of the protocols
long pre-dated austerity and legal aid cuts and our evidence gathering revealed
current problems with the protocols in housing disputes.

3.29 First, protocols can be complex, notwithstanding that disputes themselves are
not always complex, or worth a significant amount in damages. 186 They also pre-
suppose the availability of legal advice and assistance before commencing a
claim. For many claimants, whether in disrepair or possession claims, this
assumption no longer holds. More could be done to simplify the protocols and
187
make them more user friendly. For instance, the disrepair protocol contains a
schedule with a template letter that tenants are required to send. One option
might be to embed a PDF template letter generator in the protocol, which tenants
can populate with the relevant details of their claim. More generally, protocols

185 Lord Woolf, ‘Access to Justice Final Report’, Chapter 10, available at https://webarchive.nationalar
chives.gov.uk/20060213223540/http://www.dca.gov.uk/civil/final/contents.htm Claimants are required
to notify prospective defendants of their claim and parties are expected to meaningfully exchange
information to see whether disputes can be resolved without proceedings ‘Practice Direction - Pre-actio
n conduct and protocols’, available at https://www.justice.gov.uk/courts/procedure-
rules/civil/rules/pd_pre-action_conduct See also Zuckerman, Zuckerman on Civil Procedure: Principles
of Practice, (Sweet and Maxwell, 3 Edn, 2013) para 4.5.
rd

186 For example, pre-action protocols for disrepair claims run to over 5,000 words and explains that it is
intended to cover claims brought under all of Section 11 of the Landlord and Tenant Act 1985, Section
4 of the Defective Premises Act 1972, common law nuisance and negligence, and those brought under
the express terms of a tenancy agreement or lease, but that it does not cover claims brought under Section
82 of the Environmental Protection Act 1990 (which are heard in the Magistrates' Court) nor those that
are counter-claims, para 3.1-3.4. Subsequent sections of the protocol require tenants to produce a letter
of claim with the details of defects in the form of a schedule, the effect on the tenant, the details of any
“special damages”, the proposed expert and a letter of instruction to an expert, available at
https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_hou. The protocol has recently
(January 2020) been revised to apply to fitness for human habitation claims under s.9A, Landlord and
Tenant Act 1985 (as inserted by the Homes (Fitness for Human Habitation) Act 2018). Those
amendments do not apply in Wales, where the previous version of the Protocol remains in force.

187 While we acknowledge that detail may be necessary to cover all necessary elements of pre-action
conduct, they have been drafted by lawyers with lawyers in mind, see JUSTICE note 26 above para 2.14.

65