The Hlpa meeting tonight (17/9/08) was a particularly interesting one, on the topic of disrepair. Talks were from Mel Cairns, Andrew Brookes of Anthony Gold and Marina Sergides of Garden Court.
Among the end of meeting news items were:
- The current intent is that the main body of the Housing & Regeneration Act, including the tolerated trespasser provisions, will come into force on 6 April 2009.
- New Housing Benefit regs coming into force on 6 October 2008 mean that HB backdating claims can only be made for 6 months (for those of working age) and 3 months (for pensioners). Not good news.
There were a few surprises for me arising out of discussions of the talks.
One was that relatively few people have much experience of CFA funding for disrepair claims, despite the effect of the new regulations in easing the requirements and therefore subsequent costs challenges to the validity of the CFA. Given the large proportion of social tenants who will not be leigible for legal aid, I would have thought that, as Andrew Brookes suggested, this was a clear option for funding claims that the tenants otherwise have no way of bringing.
The other surprise was that basically no-one in London/the SE is bringing EPA 1990 private prosecutions anymore. The history, which was news to me, was that there were great swathes of prosections in the 1980s, mostly in east London, and that a batch process was in place, which still operates in Birmingham, apparently. But recent experience seems to be that they are difficult, massively unpredictable in the Magistrates Court, and prone to unexpected detonations or collapses. I’ve not done an EPA, though I’ve been slightly involved in someone else’s. I can appreciate that focussing on the Criminal standard of proof is a hefty adjustment for civil litigators. I can also appreciate that it an be difficult presenting the Magistrates, or a DJ in the Mags, with an unusual and unfamiliar prosecution, but it may be a chicken and egg thing. More solicitors and Counsel wth experience of EPAs and more Magistrates Courts used to dealing with them could bring a different approach.
Marina Sergides did a useful run down of recent(ish) cases. Most, I am pleased to say, were previously reported on Nearly Legal. Some were unreported (anywhere) and I shall shamelessly purloin those, with attribution, for notes over the next few days.
Levels of damages were a topic at Hlpa and, as I have noted before, we seem to be in something of a state of stasis (or even a real terms fall on these), partly due the lack of higher court cases, and for that reason, I’m all for some upward pressure. A commentor at Hlpa suggested that he was seeing settlement figures routinely higher than many recent reported County Court cases. I could probably say the same, but even non-binding County Court cases aren’t helpful in making the argument.
EPAs are a good way for trainees to get to see the inside of a magistrates court, but their usefulness pretty much ends there. The very tight timescales mean that files are open for a few months at best, with the obvious revenue consequences for representatives. Worse still, we can only realistically expect the legal aid rates, as the risk of a criminal sanction also seems to have effect of transforming usually incompetent housing officers into efficient dynamos who motivate their usually slothenly contractors to get the work done before the hearing date. The hearing doesn’t go ahead and a costs order against the other side is all but impossible.
As a rule of thumb, where there’s a potential EPA claim, there are bound to be some breaches of the repairing covenant as well. Without the threat of an appearance before the mags, landlord will move along at the usual snail’s pace and the costs-clock keeps ticking.
All in all, it’s best to throw any EPA issues into the S.11 pot and go for a global compensation settlement plus costs.
Colin, obviously one would go for s.11 if there were any option to do so, but with condensation or mice cases, that isn’t always possible, leaving the tenant without redress. I don’t wholly buy the costs argument on time – condensed intensive work can easily bill as much as a slow paced disrepair, but the greater costs risk of hastily done works is a point well taken. Although in my experience of enforcement proceedings with penal notice, the threat of criminal enforcement isn’t always such an incentive.
I still am surprised there aren’t more EPAs, but strong views were expressed about experiences at Hlpa, so this may be a history thing.