Page 72 - Solving Housing Disputes

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should be revisited for clarity and accessibility for non-lawyers. We
recommend the Civil Procedure Rule Committee revisit pre-action
protocols for housing disputes, with view to simplifying them and making
them more user friendly for both practitioners and the significant number
of people who come before the courts without housing advice and
representation.

3.30 A second issue is accountability for pre-action requirements. The pre-action
protocols for social housing and mortgage possession claims encourage parties
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to negotiate prior to commencing a claim. However, claim forms used for
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social housing possession, for example, do not require a claimant to certify
whether they have actively engaged with the tenant at the pre-action stage. This
ultimately means that little information on pre-action efforts comes before a
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judge, in circumstances where the court might have little time to spend on an
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individual case.

188 Lord Woolf’s described the problems of the pre-CPR civil justice system as including a “lack of
equality between the powerful, wealthy litigant and the under resourced litigant…and [that] it is
incomprehensible to many litigants”, note 185 above para 2.

189 These include that a landlord should contacts the tenant to discuss the causes of arrears, attempt to
agree affordable repayment sums, arrange through DWP for arrears to be paid from benefits, offer the
tenant assistance in any claim and advise the tenant to seek assistance from advice agencies part 2.1 –
2.7 Pre-Action Protocol for Possession Claims by Social Landlords, available at
https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-possession-
claims-by-social-landlords#2.1 Sir Rupert Jackson, at the time of his interim report, concluded that the
“Rent Arrears Protocol has had a beneficial effect in reducing the number of possession claims which
would otherwise have been initiated,” Jackson LJ, ‘Review of Civil
Litigation Costs: Preliminary Report’, (The Stationery Office, 2009) p. 270 available at https://www.ju
diciary.uk/wp-content/uploads/JCO/Documents/Guidance/jackson-vol1-low.pdf A similar process
applies in the pre-action protocol for mortgage possession claims, which requires a lender or home
purchase plan provider to actively engage with the borrower when they fall into arrears
https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_mha

190 Form N119, Particulars of claim for possession https://assets.publishing.service.gov.uk/government
/uploads/system/uploads/attachment_data/file/732257/n119_web_0818_save.pdf

191 Bright and Whitehouse’s research suggests that information on claims forms tends to be rather limited,
with a judge interviewed advising that ”we don’t get much other than what we elicit by our own
questioning really, the documents aren’t going to help us,” Bright and Whitehouse note 166 above DJ6.
In more recent research, they found the majority of possession cases they observed were dealt with in 5
minutes or less, Whitehouse, Bright, and Dhami, ‘Improving Procedural Fairness in Housing Possession
Cases’, (2019) 38:3 Civil Justice Quarterly 351, at p. 359.

192 While we appreciate that time taken on possession lists varies geographically, 2005 research found
that in some courts, up to 30 possession cases were listed in an hour, Hunter, Blandy, Cowan, Nixon,
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