Cawley & Cawley v Abdri Group Limited. Yeovil County Court. 5 February 2025. (Copy of Judgment)

This is something of a companion piece to the two judgments in Bristol we noted here, being also a judgment on an interim application in a housing conditions claim, and featuring arguments about Inhouse Complaints Procedure (hereafter ICP). This one also features a defendant’s application for summary judgment on the claim for specific performance. Quite an audacious application as it turns out.

Mr & Mrs Cawley are the assured tenants of Abri since 2021, following a takeover. They were previously the tenants of Yarlington in the property since 2006. They had been complaining about problems with the property since 2009 and since 2021 to Abri. In particular, there were complaints about damp and mould to the rear extension, which Mr C used as a bedroom, since 2015. In 2020, it was noted that floorboards had rotted. After 2021, Abri attended on various occasions, noted problems and suggested use of a dehumidifier, even after identifying what appeared to be a new issue of a leak through the roof.

In November 2023, the C ‘s solicitors sent a letter of claim. This proposed an SJE, or if Abri wouldn’t agree, a joint inspection. It made clear that the Cs were open to ADR by way of mediation, early neutral evaluation or without prejudice discussions.  By way of response Abri told the Cs’ solicitors that the letter had been passed to the complaints team and it “would be processed as a complaint” in the ICP.

Abri then stopped communicating with Cs’ solicitors, writing to Mr & Mrs C directly. Abri arranged for an inspection by its own in house surveyor, Mr Walker, without any attempt at arranging a joint inspection with Cs’ expert. There was no protocol response to the letter of claim.

Abri’s complaint response of 7 February 2024, as summarised in the judgment, said

a) that it was upholding Mrs Cawley’s complaint made on 6 December 2023 -“… a complaint about damp and mould in the dining room bedroom downstairs” -(following which an offer of £5,722 is made to Mrs Cawley); and also
b) addresses aspects of the content of Satchell Moran’s Letter of Claim dated 15 November 2023 but rejects Abri’s interpretation of the complaints raised in that letter save in one very minor respect; an acknowledgment as follows – “For the lack of communication, we would like to offer our sincere apologies. It is for this reason that I am upholding your complaint.” – (following which an offer of £50 is made to Mrs Cawley).

In the interim, Cs’ expert had inspected in November 2023, and produced a report in December 2024. This was apparently served on Abri, but was not addressed in the complaint response.

The claim was issued in July 2024 and included a claim for specific performance in relation to the works set out in C’ expert’s report.

Abri’s more or less immediate response was to issue the present application for:

a) summary judgment on the claim for specific performance; and

b) a stay for the matter to go through stage 2 of Abri’s ICP

District Judge Bosman recognised this matter had potential broader implications, stating:

the indications that the issues raised in this case have or may have much wider implications, I made clear at the outset of the hearing that it was my intention to deliver a concise written judgment shortly following the conclusion of the hearing after I had had a proper opportunity to carefully read and reflect upon all of the content of the agreed hearing bundle and the various authorities and documents to which I was referred.

First, on the application for summary judgment on the claim for specific performance.

The Court acknowledged that specific performance could be an ‘issue’ for the purposes of CPR Part 24.1 and so capable of summary judgment. However, Abri’s application had a couple of substantial problems.

The application was made on the basis that

Abri asserts that, save in one minor respect, it has carried out all of the remedial works that it considers are necessary and thus there are no further remedial works required which can or do properly attract the attention of the claim for an order for specific performance. With regard to the minor item, the repainting of the external render to the rear extensions) it is said that given Abri’s assurance that the repainting will be attended to sometime in 2025, it is unnecessary to and there is no realistic likelihood that a Court would order specific performance of the re-painting obligation (even assuming that it remained unattended to at the date of trial).

This was asserting that all the works in Mr Walker’s report (save for the decorating) had been done.

Mr Walker was Abri’s employed surveyor, which caused the Court some concern

I have reservation regarding Mr Walker’s impartiality and suitability to act as an expert witness as he is directly employed by Abri.

But the more fundamental problems were that Abri had also served a report by a Mr Roberts in support of the application. Mr Roberts was also a surveyor employed by Abri. This caused some surprise to the Court

I do not understand why any party to litigation, represented by Solicitors, should think that it is at all appropriate to seek to rely on expert evidence from two individuals who possess the same expertise. On any view, it would have been appropriate for Abri to have secured any necessary further/updating reports from Mr Walker and not from Mr Roberts.

But worse, Mr Robert’s report mentioned an issue (and prospective works) not addressed by Mr Walker.

Then, most seriously, Mr Walker’s conclusions as to the issues and the works required differed from that of the Cs’ expert. There was overlap, but different opinions as to the cause of the damp to the rear extension, and thus as to remedial works required. Abri had not carried out those works and indeed had refused to.

Abri’s argument (and remember this is on a summary judgment application), was that

the solution recommended by Mr Walker and implemented by Abri constitutes a reasonable approach to matters and that as landlord and the party with the burden of the repair obligations it is Abri’s prerogative to determine what is required in the way of a reasonable remedial solution and therefore, essentially, it will not be open to the Court should this issue proceed to trial to, in effect, look behind Mr Walker’s conclusion and order specific performance of further or alternative remedial works.

That submission is handled surprisingly gently by the Court, but the conclusion was inevitable:

That proposition is only correct in part. Where two alternative reasonable solutions are available to remedy a defect, it will be for a Landlord in Abri’s position to decide, acting reasonably, which remedial solution it will implement. However, Abri is not the ultimate arbiter of whether the solution advocated by Mr Walker is an effective and/or reasonable solution and at trial it is most certainly possible that the Court may conclude that Abri’s/Mr Walker’s analysis/conclusion is wrong or in some respects flawed or otherwise inadequate and therefore does not constitute a discharge of Abri’s repair obligation.

The Cs’ expert report was credible. The Court had some concerns about Mr Walker’s report, which was in one part departed from by Abri’s Mr Roberts in his report. Abri had not come close to the evidential burden in seeking summary judgment.

Then on the application for a stay to go through stage 2 of the ICP…

The C’s letter of claim was pre-action protocol compliant and had proposed various forms of ADR. Abri had wholly failed to respond on that. That and Abri’s decision to treat the letter of claim as a stage 1 complaint was in breach of the pre-action protocol.

The unilateral decision on the part of Abri, to treat the Letter of Claim as a “complaint” was not what had been called for by Satchell Moran and was not what paragraph 4.2 the Protocol calls for.

Abri then failed to provide Cs’ solicitors with any information about their ICP until 3 months after the stage 1 complaint decision had been made.

Abri had not sent a ‘landlord response’ under the pre-action protocol, either para 6.2 or 6.3 forms. As per the protocol, the claimant was free to commence proceedings in view of that failure.

Abri had refused to communicate with Cs’ solicitors and the complaint response did not engage with Cs’ expert’s report. Then there was the content of the complaint response.

Having read Abri’s stage 1 decision carefully, I make clear my concerns that Abri’s approach to investigation of complaints and also to its resolution of complaints falls short of my expectations. It is difficult to understand how Abri might properly have dissected out from Satchell Moran’s Letter of Complaint what it comes to label as Mrs Cawley’s 6 December 2023 “. complaint about damp and mould in the dining room bedroom downstairs” and then find favour with that 6 December complaint but reject the substantive content of the Letter of Claim or what acceptable motive might underpin that approach.

And no details of the operation of Abri’s ICP had been provided to the Court.

The Court has not been provided with a copy of Abri’s Internal Complaint’s Procedure. Given this lacuna, is not possible for the Court to form any proper conclusion as to the appropriateness of that procedure in the context of whether it might represent an appropriate exercise of the Court’s discretion to stay the litigation, as invited by Abri, to give the parties the opportunity to progress to a stage 2 decision.

Also, given this lacuna, it is not possible to properly consider and identify whether, having regard to the fact that Abri has unilaterally applied its Internal Complaints Procedure to (a) the 6 December 2023 “complaint” and (b) Abri’s interpretation of the content of the Letter of Claim and already produced a stage 1 decision, any useful purpose could at this time be served by matters progressing to a stage 2 decision.

Given the nature of the stage 1 decision

I cannot be confident that Mr & Mrs Cawley, whose Solicitors were not permitted to contribute to the stage 1 process have not been and will not again be disadvantaged.

Given the definition of a ‘complaint’ by Abri, it was also clear that many of the complaints by the Cs should have been treated as stage one complaints under Abri’s own ICP, given the numerous, repeated complaints and complaints about the service response since 2021 (and indeed before).

The Court refused to grant the stay sought as not being an appropriate exercise of its discretion, given:

• my conclusion that the right time for Abri to have implemented its Internal Complaints Procedure was
much earlier and at the very latest in October 2023 when Mr & Mrs Cawley made clear their concern that they were becoming fobbed off by Abri and that they felt they were left with no option but to escalate matters;
• my conclusion that had Abri dealt with matters as above and properly, in all likelihood, it would not have incurred a potential liability in respect of Mr & Mrs Cawley’s legal costs;
• my conclusion that Abri chose to not deal with those complaints under its Internal Complaints Procedure when made as it could and should have done;
• my conclusion that Abri unilaterally implemented its Internal Complaints Procedure addressing its
interpretation of the content of the Letter of Claim primarily in an attempt to head off a probable liability in respect of legal costs and hoping that its unilateral decision would likely operate to its advantage but aware also that its decision would likely operate to the detriment of Mr & Mrs Cawley;
• my reservations as expressed above regarding Abri’s approach to its handling and resolution of Mr & Mrs Cawley’s “complaints”;
•  the fact that the detail of Abri’s Internal Complaints Procedure has not been made available to me for consideration;
•  that, given this lacuna, it is not possible to properly consider and identify whether, having regard to the fact that Abri has unilaterally applied its Internal Complaints Procedure to (a) the 6 December 2023 “complaint” and (b) Abri’s interpretation of the content of the Letter of Claim and already produced a stage 1 decision, any useful purpose could at this time be served by matters progressing to a stage 2 decision;
• the apparent (having regard to the information lacuna and the comments forming part of the stage 1
decision) limitations of the stage 2 process;

Oh and as a chaser:

Abri asserts that “… this is a claim which exists only for the benefit of C’s lawyers.” and are otherwise vociferous in their criticism of the manner of the Satchell Moran’s conduct of this claim.

The criticisms directed at Satchell Moran by Abri are wholly without foundation and should not have been made.

Application dismissed, with costs to the Claimant and directions given to trial, including a joint expert inspection and discussion.

Comment

Oh my heavens.

A few practice points, for both claimants and defendants (though mostly for defendants).

i) The pre-action protocol exists and both parties should follow it. Not just because both parties are required to, but because it presents a reasonable approach for the early resolution and settlement of the claim.

Specific points – the parties are required to consider and seek to agree a form of ADR. Where the claimant has proposed forms of ADR in the letter of claim, it is not open to the defendant to simply ignore that.

It is certainly not open to the defendant to unilaterally impose a process.

It is certainly not open to the defendant to simply treat the letter of claim as a formal complaint and ignore the pre-action protocol while it deals with the complaint in its ICP.

Yes, I know the Housing Ombudsman says that a protocol letter of claim should be treated as a formal complaint but – and it is a very big but – the Ombudsman is clear that this should run alongside the pre-action protocol stages.

The Ombudsman is also very clear, in the now statutory guidance, that any tenant complaint about a landlord’s failure to respond adequately to a service issue should be treated as a stage 1 complaint. Landlords don’t get to wait until they receive a letter of claim and then remember that they have a complaints process. This will obviously be a factor in any attempt by the landlord to propose the ICP as ADR, as it was here.

(Oh and if you as defendant are going to seek a stay for the ICP as ADR, at the very least have evidence of the ICP process available!)

Claimants should not be sitting back and waiting for the landlord to complete the stage one complaint. As noted in this judgment, if the landlord has not provided a protocol response under 6.2 or 6.3 of the housing conditions (England) pre-action protocol, it is open to the tenant to issue their claim. There is no reason to await a stage 1 complaint response through the ICP.

The protocol on single joint experts should be treated seriously. It is not a serious response to say (as I have seen) “we don’t believe it needs an SJE, our client’s surveyor will inspect”. If an SJE is not agreed, there should at least be an attempt to agree a joint inspection by party experts.

(If you as defendant are having an in-house surveyor inspect, do try to only rely on a report by just one of them. You won’t get to rely on two, and it won’t help if they say different things to each other.)

ii) Works

Claimants do not get to dictate how the landlord does works that are the landlord’s responsibility. I’ve seen claimants try, and winced. I’ve also had to explain this to quite a few tenant clients who, understandably, have very particular views on how things should be done.

But, as this judgment makes clear (should it ever have needed making clear) that only extends to the landlord’s discretion as to reasonable options to remedy the established defects.

It does not give the landlord the right to unilaterally dictate what works are required where the issue in dispute is the cause or extent of works needed to adequately remedy a defect (whether of repair, or unfitness for human habitation).  Where it is wholly within the Court’s discretion as to what specific performance is ordered and why, it is rarely a good idea to tell the Court that it should just take the landlord’s word for it and couldn’t order specific performance.

This is, of course, one reason why the protocol recommends joint inspections if party experts are relied on.

iii) Don’t make wholly improper allegations in pleadings or statements of case. Particularly when your accusations are based on sand, or on legal and factual errors. Your outrage will rarely convince the Court.