Page 77 - Solving Housing Disputes

required to adduce evidence or offer explanations on claim forms as to whether
they have engaged with the pre-action processes, including requirements to
202
engage with ADR. Uptake of ADR is also discouraged by the current approach
to legal aid funding. In housing disputes, the definition of “early legal help”
203
captures activities outside of and prior to a dispute. What is not included is the
ability for practitioners to advise and act for clients through a pre-action ADR
process.

3.39 The absence of legal advice and representation from pre-action ADR stymies
uptake. In family disputes, the withdrawal of legal aid and lack of contact with
solicitors at an early stage caused a drop in the uptake of family mediation, which
risks parties entering ADR at a pre-action stage without an appraisal of their true
204
position, with a consequent risk of under-settling. Our Working Party thinks
changing the definition of “legal help” to capture advising and engaging with
ADR at the pre-action stage is crucial to uptake and efficacy, and should be
available to encourage ADR as early as possible in the process. We recommend
that the definition of “legal help” under legal aid contracting for housing
should be changed to capture and remunerate acting and advising through
pre-action ADR processes.

3.40 While the removal of practical obstacles to pre-action ADR uptake should
improve the position, the biggest issue is that there is no coherent, structured
method for uptake of pre-action ADR in most housing disputes. Solicitors on our
Working Party explained that pre-action ADR is applied on an ad hoc basis,
generally at the initiation of the wealthier party, as those who are legally aided
are not funded to pay for pre-action ADR, nor act for parties through that process.

3.41 This lack of structure can be contrasted, for example, with that which is available
for low value personal injury claims in road traffic accidents. The Pre-Action

202 One of the solicitors interviewed by Bright and Whitehouse suggested claim forms were dealt with in
a rudimentary fashion, and ”as far as the actual process is concerned, you put in X, Y, Z and you get the
hearing date through”, note 166 above Solicitor 1.

203 In housing this tends to include diagnosing the problem, providing advice, drafting letters, advice on
proceedings, negotiation (but not as part of a formal ADR process) and obtaining specialist reports Shel
ter, ‘Legal Help and Help at Court’, available at https://england.shelter.org.uk/legal/courts_and_legal_a
ction/civil_legal_aid/Legal_Help_and_Help_at_Court

204 Briggs LJ note 160 above para 6.35.

71