I’ve been passed a couple of judgments in housing conditions claims at Bristol County Court, one a contested allocation decision, the other on an application for a stay. They are both interesting, but also I think illustrative of current issues in the approaches of both defendants and claimants in housing conditions claims.

The usual disclaimer – these are county court and not binding (although as we’ll see, the allocation decision was by a circuit judge and had been deliberately assigned to the CJ to give guidance to local Judges, so has persuasive value.

First the case notes, then some comment. Forgive me if I deal with the judgments at length. It is rare together written judgments on such interlocutory matters and applications in housing conditions claim, but there is also much of interest in what is argued and disposed of in the cases, as being the front line of argument these days (rightly, or more likely, wrongly.)

Stojalowski v Bristol City Council. County Court at Bristol. 11 December 2024. HHJ Blohm KC (copy of Judgment)

A Bristol City Council tenant claim, principally in respect of damp and mould. This was a contested hearing on allocation. The claimant asserted it was a fast track claim. Bristol took a stand, arguing it was a small claim. The Court noted the context for submissions on this:

Behind the submissions lies the question of costs. There are a number of these or similar claims that have been brought before this Court. The council wishes to litigate them in a regime where the litigation would be marked by a relatively low costs bill. The claimant wishes to be represented, and to be able to charge the council accordingly.

It appeared that there was notice of damp and mould issues from 2022. A letter of claim in 2023 asserted these, plus active leaks, broken windows and non-watertight doors to the balcony. Works at open market costs were said to be at some £1,431, but some of those were for investigation with potential further works required. Additional items of disrepair identified by the claimant’s surveyor came to a further £1,323.

On receipt of the letter of claim, Bristol decided to treat it as a stage 1 formal complaint (this has been the Ombudsman’s guidance, though not, as I recall, in 2023). The stage 1 complaint response denied any prior notice of disrepair and so there wasn’t any failure to carry out repairs. The council carried out some works in March 2023, and in November 2023, inspected and found further works required, including further investigatory works. An offer of compensation of £833.90 was made.

The claim was issued in January 2024 and a defence in March 2024. (We’ll come back to pleadings below). The defence said that some works had been carried out and that some further works, including investigatory works, would be done as per the recommendations of the defendant’s surveyor.

Notice of proposed allocation was for the small claims track. The claimant sought fast track, Bristol, obviously didn’t.

A DJ, without a hearing, then stayed the claim for three months for the application of Stage 2 of the council’s Inhouse Complaints Process (ICP. This is somewhat jawdropping, and see Hasan v Bristol City Council below for more on this). Eventually, on expiry of the stay, the allocation hearing came on. The first instance DJ adjourned the hearing to be before a CJ for local guidance.

For the allocation hearing, there were six (SIX!) witness statements, two on behalf of the claimant and four (FOUR!) on behalf of Bristol.

Bristol’s evidence at that stage was that works had been completed save for damp to the bedroom, which appeared to be a failed damp proof course and that was due to be done by February 2025. The claimant said the property was still damp, with mould in the bathroom and now blocked trickle vents.

The claimant’s position was that both works and damages were in excess of £1000, so the fast track was appropriate – CPR 26.9(1)(b). Indeed damages would exceed £2,000.

Bristol’s submissions, as summarised in the judgment, need to be quoted:

The council does not shy away from a submission that the fiscal consequences of allocation to the fast track would be contrary to the public interest. It notes that in 2023/4 the cost of meeting disrepair claims rose by 75% over the previous year, and is likely to double in 2024/5. It is presently facing 230 live claims, having received 34 since 1 October 2024. More specifically it asserts that during the internal complaints procedure that has taken place in part in parallel with the litigation it has acknowledged that the Claimant is entitled to compensation for the council’s failure to remedy the disrepair, and offered £833.90; and that in considering the value of the claim that sum should be deducted from whatever other sum is claimed. As far as the claim for specific performance is concerned Mr. Wightwick contends that the court will not grant specific performance against a local authority landlord that is seeking to carry out its contractual obligations.

The Court (although erroneously describing ‘fixed costs’ as available on the fast track – housing disrepair claims are outside fast track fixed costs regime), went on the find that the grounds of CPR 26.9(1)(b) were made out on the face of the claim.

For allocation purposes, with regard to specific performance, the issue was whether that was a remedy sought by the claimant, which it was. Whether specific performance would be ordered at trial was a matter for the court’s discretion.

As I have noted above, the council contends that the court will not grant an order for the specific performance of its repairing covenant against a social landlord or local authority where that body is willing to, and doings its best to, carry out repairs. I do not consider that that is necessarily so. The grant of an order of specific performance is a discretionary matter for the court. It may be that, at trial, a court will consider that an order for specific performance is unnecessary or inappropriate. But at this stage the court is considering whether that is a remedy that the claimant is seeking. It is plain both from the Particulars of Claim and the claimant’s witness statement that she is seeking that remedy. In order to succeed on this part of the argument the Council would have to show, as indeed it argues, that the claim for specific performance should be struck out. If the work had been done after issue but before allocation, then matters would be different. But here they have not been done, and the problem remains. That is not the position here; the defect continues.

Counsel for Bristol could provide no authority to the point that a contracting party that was trying but failing to carry out its obligations would be immune from an order for specific performance.

He says that no court would make an order in circumstances that might lead to committal proceedings for failure to act in compliance with the order. There appears to me to be authority to the contrary – see Parker v Camden LBC (1986) Ch 162 (Sir John Donaldson MR at 175-6; Browne-Wilkinson LJ at 177B; Mustill LJ at 179) where the Court of Appeal contemplated making a mandatory interlocutory injunction against a local authority to restore functioning heating.

On the cost of works, the Court would rarely have detailed figures available at the time of allocation, which was the relevant time. Smaller easily remediable works, like a bath panel or broken windows would by themselves be minor items which should be excluded from the fast track, but not a persistent leak into the main bedroom of a flat, as here.

On the cost of outstanding works, Bristol argued that the relevant cost should be their inhouse repair costs, as per Jalili v Bury Council. Manchester County Court 17 June 2021 (our note here), rather than the open market repair costs. This did not help Bristol. There was no estimate of the costs of works still to be done provided. Bristol appeared to be using external not inhouse contractors in any event, and finally

if necessary, I consider that Jalili was wrongly decided. The purpose of para (b)(ii) is to provide an objective yardstick of cost for the purposes of allocation. It cannot be right that it should vary according to the economies of the particular defendant. ‘Cost’ here must refer to the no doubt local but open market cost of carrying out the works.

On the value of the claim for damages, the claim form limited the claim to £5,000. Even a 10% of rent value of claim would be more than £1000, but the relevant value for allocation was what the claimant claimed. Where there is a range of possible recovery, the value of damages for allocation purposes should be taken to be at the upper end.

On the ‘set off’ of the £893 offered by Bristol in the complaints process, this could be taken as a conditional admission of quantum which should be taken into account (though Bristol denied any liability), but the value of the claim would still exceed £1,000.

Two experts would apparently be required and trial would likely take longer than 3 hours.

Bristol argued that the claimant had failed to engage with the two stages of the council’s ICP as an alternative to litigation. This, if true, was irrelevant to allocation. The court had here actually ordered a stay for the ICP to be worked through (stage 2), and the matter had then proceeded.

Bristol argued they were facing very many such claims and that CFA bulk claims should be slowed down or directed to the ICP so that the council could spend the money on repairs.

The difficulty with this argument is that a stay can be sought where the litigation is premature, but where a stay has been granted or is not sought, that is no longer material; the claimant is entitled to proceed with her case. Allocating the case to the small claims track where the claim is, considered on its own merits, appropriate for allocating to the fast track, would in my view be wrong. If claims such as those should not be subject to the fast track costs regime or not subject to litigation, then that is a matter for Parliament or the Rules Committee to deal with. There is an argument that it is only the availability of legal assistance by such means that confers a timeous remedy on those without means who need it. That is not for me.

I therefore conclude that the effect of allocation on the housing function of the defendant council is not a matter that should ordinarily have weight in respect of an allocation decision.

Claim allocated to the fast track.

Comment at the end of the post, including on pleadings by both parties, which are shockers.

Hasan v Bristol City Council. County Court at Bristol. 27 March 2025. (copy of Judgment)

This was an application by the defendant, Bristol, for a stay for alternative dispute resolution, specifically by going through stage 2 of the council’s inhouse complaints process (ICP). The claim was a housing conditions claim. The claimant had already been through stage 1 of the complaints process, when Bristol decided to treat the letter of claim as a stage 1 complaint.

The thing is that the claimant did not oppose a stay for ADR, but wanted an independent mediation. Indeed the claimant had proposed this in the initial letter of claim and subsequently, on two occasions, invited the defendant to joint settlement meetings. Bristol had not replied, but had instead issued this application.

The judgment starts with an initial telling off of Bristol’s counsel for the very late filing of a 12 page skeleton with a 74 page authorities bundle.

The inadequate explanation given by Counsel for the Defendant for the very late skeleton was that he was overworked and had only received the bundle whilst in preparation for a trial on another matter.

But given that the principle of a stay for ADR was agreed, the issue was what the defendant sought in its application, an order to go through stage 2 of the ICP.

The District Judge observes that para 4.1 of the Housing Conditions pre-action protocol requires that the parties should consider some form of ADR as being more suitable than litigation. The DJ then goes on to observe (more questionably)

The options for resolving a dispute are set out at 4.2 and include the following : a) mediation; b) for council tenants the Council’s own complaints and/or arbitration procedures, the right to repair scheme, the Housing Ombudsman Service.

(I’ll come back to this below). The DJ then considers Churchill v Merthyr Tydfil County Borough Council (2023) EWCA Civ 1416 (our note), concluding it has the power to order a stay for ADR and the form of ADR is at its discretion.

The stage 1 complaints process had resulted in the claimant concluding that:

“The decision did not adequately deal with all of the issues in the letter of claim and expert’s report. The compensation awarded was inadequate and the response mainly lays the blame at the Claimant’s door with limited acceptance (if any) that the property has suffered from disrepair or is unfit for human habitation.”

There was no detailed written procedure for the stage 2 process, making the court’s assessment of the value of the process difficult. But nonetheless

One of the particular concerns for me is that the primary form of ADR being proposed by the Defendant is not independent. The stage 2 process is one where there is not an equality of arms between the participants. The Defendant participates with a litigation officer assigned to the disrepair team, its own surveyors and an inhouse legal department. The Defendant’s letter of 6 December 2023 indicates that the Defendant does not engage with solicitors as part of their internal complaints process. Therefore when a party engages in the stage 2 process they do not have the benefit of legal representation or a surveyor. The inequality is more enhanced when you consider the ongoing legal relationship of the parties, with the Defendant as the landlord of the Claimant.

Of major concern to me, alongside the absence of equality of arms is that the process does not allow for the resolution of all of the issues which are currently between the parties. There is an active claim here, where legal costs have been expended, but these are not dealt with within the process.

While the stage 2 process might be free, that was not an overriding factor, nor was that the defendant was a local authority.

And then there was Bristol’s defence.

This application, when seen in the context of a 27 page long defence raised by the Defendant, responding to an 8 page particulars of claim, which includes allegations of anti- social behaviour and rent arrears but no counterclaim for these; does not lead me to the view the stage 2 internal process is the right form of dispute resolution in this case. In my judgment an independent mediation, run by a professional mediator with professional representation for each party if they choose, where the merits of the respective cases can be taken into account in trying to reach a settlement, gives the most realistic prospect of achieving a total settlement.

Defendant’s application dismissed. A 2 month stay ordered for independent mediation, as proposed by the claimant,

Comment

*Mounts pulpit*

I’ve been doing disrepair/housing conditions claims for nigh on 20 years now. They’ve always been contentious, but usually, absent something a bit mad going on, could always be settled between competent parties acting reasonably.

But that is not necessarily we are now. Let’s look at some of the comments on pleadings in these cases.

In Stojalowski, on the Particulars of Claim, the Court observes

Both the particulars of claim and defence are lengthy documents, unjustifiably so. Although the particulars of claim are expressed to be settled by counsel, it gives the appearance of being full of material designed to justify the bringing of litigation and to head off any suggestion that litigation of itself is inappropriate, or that allocation to the small claims track is appropriate, and to that extent boilerplate drafting rather than bespoke. In that respect it has similarities with PPI claims.

So, i) particulars should not be said to be by counsel unless counsel has drafted those specific particulars. ii) Housing conditions particulars should not and cannot be generic. Conditions claims involve possibly multiple heads of claim. Each has to be pleaded, defect, duration and notice. Pleading defects cannot be, as it appears from the judgment, solely by reference to an expert’s report. iii) While a precedent format for claimant pleadings is fine, these are not and cannot be ‘insert names and dates’ bulk pleadings. To have your particulars described as ‘boilerplate’ with ‘similarities to PPI claims’ should be shameful and an indication that you may be failing your clients.

The SRA’s warning notice of December 2024 is relevant here, for ‘high volume’ claims. (Note that the SRA considers that solicitors must ensure that marketing and recruitment materials by third party CMCs must meet the solicitors code of conduct – so no cold calling or leafleting or targeted marketing. And the solicitors are responsible for ensuring that their marketing leads are FRC registered and regulated.)

My six year old post on claims farmers and associated legal firms remains on point.

But meanwhile, there are defendant’s pleadings. Aside from the losing arguments in these cases, there are questions about unreasonable defences. In Stojalowski, the court says

The defence is prolix and at one point submits that the claim for specific performance is made in bad faith and ought to be struck out, and literally suggests that the court should instigate an inquiry as to whether the claimant and/or her lawyers have knowingly signed an untrue statement of truth and therefore acted in contempt of court. That was an improper allegation that should not have been made.

I’d go a bit further and suggest that, when included in a defence that had to admit that some further works were required and outstanding, this was an outrageous and wholly improper submission that borders on professional misconduct. This, I have to note, was after a stage 1 complaint and then a further stay was granted to go through stage 2 complaint proceedings and the works still weren’t done. In any event, that further stay should not, in my opinion, have been granted, given that the stage 1 procedure was inadequate and the inadequacy of ICP as ADR..

Oh yes, the ICP as ADR thing. It just isn’t, bearing in mind the Churchill v Merthyr Tydfil factors, as per Hasan here. Inequality of arms, inadequacy of compensation, and lack of legal funding for claimants are all real factors. (And para 4.2 of the pre action protocol does not list forms of ADR, unless consulting Shelter’s or Citizens Advice advice pages can be considered ADR.)

I’ve had a lot of responses lately saying a letter of claim is being treated as a stage 1 complaint. This is fine. It is the housing ombudsman’s recommendation for social landlords. But it does not stop the pre-action protocol running in parallel. The point is that it is a (yet further) opportunity for the landlord to act on a complaint and do the bloody works. Not that it is a, yet further,  opportunity for the landlord to delay or escape doing repairs, let alone to make a promise to do works without a deadline and a wholly inadequate offer of compensation.

If social landlords are treating a letter of claim as a stage 1 complaint, as per the Ombudsman’s direction, then no post issue stay pending ICP should even be considered.

I get silly responses from landlords these days, refusing a single joint expert on the basis that the landlord will inspect and that will be fine, demanding that the tenant go through the ICP as ADR, even where I have already proposed ADR by mediation in the letter of claim, I can see this (and other silliness) as tactics to try to put off claims from firms who do bulk claims referred by iffy claims farmers, but to have these as stock responses to serious claims by serious claimant firms  is daft and only drives up costs. The legal arguments, as these Bristol cases suggest, won’t work.