The letter then specifically objected to C7 Surveyors on the basis that they were not local to the area, and that no fees had been provided.

On 20 May 2023, the parties agreed an extension of time for a protocol response to 6 June 2023. In the meantime, a Mr Francis had inspected for Curo. His report, which was not a part 35 report (and the landlord said was not an ‘expert’ report under the protocol) found no defects, but the bathroom extractor was disconnected from the mains and worked when connected. He proposed a mould wash to the bathroom as ‘goodwill’, but no breach of landlord’s obligation. This report was sent to the claimants’ solicitors with a response from the defendant’s solicitors on 2 June. The letter said no expert was required, but if the claimants did think one was required, the instruction of an SJE could be discussed.

On the same day, the claimants’ solicitors instructed an expert, a Mr Hedges MRICS as their own expert. They did not send Mr Francis report to Mr Hedges and did not respond at that point to the defendant. Mr Hedges inspected in July 2023 and reported in early August. He found water entry to the roof void, guttering not level, damp to the bathroom due to water ingress through the roof and the kitchen extractor fan was defective.

For some reason this was not served until December 2023. The defendant responded denying the defects, saying thee value of works had been inflated,  and saying that instruction of the expert was unnecessary, premature and disproportionate. They noted they had not been informed of the inspection date, which the claimants’ solicitors said was ‘an administrative error’. The claim was issued in August 2024, in November 2024, the defendant issued the present application.

Lancastle

10 April 2024 – letter of claim alleging damp to roof and exterior wall, blocked gutters, damp and mould to the bathroom, two bedrooms and living room. It proposed instruction of a single joint expert from  ‘TLB Services’ (without identifying a specific expert or providing a CV, or details of fees, charging rate etc.

17 April 2024 – defendant’s solicitors replied asking to delay the claim while Curo’s internal complaints process was completed, and that Curo would inspect ‘by a qualified surveyor’. They could not respond on TLB as no surveyor details had been given and the cost was unknown.

On 22 April, the defendant acknowledge receipt of the CV of a Mr Smit ARICS from the claimant, but said it was not yet appropriate to consider an SJE.

On 9 May, the claimant’s solicitors told the defendant Mr Smit would inspect on 28 May. The parties agreed that the landlord’s protocol response would be provided by 21 May.

On 21 May the defendant sent a report by Mr Francis after an inspection on 28 April.

It characterised the defects that it found as minor; that the cracks were to be filled and that cracked sill to be replaced. Where complaint had been made of a failed damp proof course it noted that ‘Curo were due to visit shortly and latex the floor’ and that as works were in hand no works were required. For a number of defects it noted that ‘Damp/mould caused by condensation is not considered to be a disrepair under the Landlord & Tenant Act 1985 or Defective Premises Act 1972’. (sic)

The defendant said expert evidence wasn’t required and the claimant should just have the proposed works carried out.

On 6 June, Mr Smit sent his report, finding items of disrepair and costs of works of £2,901. He had found no claim in respect of some of the items in the letter of claim.

The claim was issued on 3 October 2024. And extension of time for the defence to 28 November 2024 was agreed. On 5 December, the defendant issued the present application:

to strike out the claim alternatively to enter reverse summary judgment. Alternatively it sought to strike out reference to Mr. Smit’s report and the appointment of a Single Joint Expert with consequential directions. The application for reverse summary judgment is surprising. It appears to be made on the footing that once Mr. Smit’s evidence is struck out the claim must necessarily fail. But given that Curo is seeking the appointment of a further Single Joint Expert were the claim not to be struck out, such a decision would be premature. In the event that part of the application was not proceeded with and I do not consider it further.

Apologies for the length, but it is necessary for what follows.

On the applications the defendants argued

that the Claimants should be debarred from relying on their nominated experts because they have failed to engage with the Defendants as to the Defendants’ responses to the claims, or as to whether expert evidence is necessary, in breach of the Protocol. Although Mr. Harry had submitted that the Claimants should have allowed Curo to carry out the work they proposed, and only then considered whether expert evidence was appropriate, Ms Richardson did not maintain that stance, contending that the obligation on the Claimant was to consider the offer and only then instruct an expert, preferably on a SJE basis.

This gave the claimants an untoward litigation advantage, the defendants argued, as they were unlikely to be given permission to reply on their in-house surveyor, or the parties would have to incur the excessive costs of separate experts.

The letters of claim had not set out the fees of the proposed surveyors and the surveyrs were not local. These were good reasons for not agreeing the proposed surveyors.

Further, Curo argues that if the Claimants cannot rely on their named expert, their Particulars of Claim are liable to be struck out under CPR 3.4(2)(a). Alternatively, for the Claimants to issue a claim under these circumstances (where the Defendant’s response had not been considered) was either an abuse of process rendering the claim liable to be struck out under CPR 3.4(2)(b), or under CPR 3.4(2)(c) for failure to comply with a rule or Practice Direction.

The defendants maintained that no expert was in fact necessary in either case.

The Claimants argued that any breach of protocol, denied, would make strike out disproportionate. Directions on expert evidence should await defence and directions, Any breach of the protocol was by the landlords in instructing their in-house expert, not responding on an SJE or maintaining expert evidence was not required. This was having its cake and eating it, by producing a report from its in-house surveyor but seeking to preclude the claimants from relying on the expert evidence that they needed to consider and respond to the in-house reports. The defendants submitting their own expert report, but saying it wasn’t a part 35 report and so didn’t entitle the claimants to obtain their own report under the protocol was unfair.

The protocol didn’t require the tenant to either discuss the landlord’s proposals for works or allow them to be carried out before engaging their own expert.

The defendants relied (to the extent that one can) on a 2023 judgment by HHJ Hywel James at Cardiff County Court in Bryant v Trevillis (We’ve not seen this). In that case, breaches of the pre-action protocol lead to the claimants not being given permission to rely on their experts. But this was effectively distinguished on different facts, so not dealt with further.

The background, as put forward by the landlords was a complaint that

the operation or purported operation of the Protocol by solicitors specialising in these claims is obliging social housing bodies to capitulate or litigate at a disadvantage, with adverse consequences for social housing as a whole, and increase in social housing budgets being spent on litigation costs, and a perverse incentive being given to in effect claims farmers to apply rules without regard to the spirit behind them. One aspect of this is the as I think they would put it unhealthy connection between the solicitors and the surveyor they rely on. It is the tenant’s solicitor who proposes the surveyor in the letter of claim; if accepted the litigation is for practical purposes in the hands of someone who appears to be parti pris. If not, the costs of an independent surveyor must in all probability be incurred.

This got fairly short shrift from the Court

I do not consider that the adverse consequences of the operation of the Protocol is germane to the applications I have to consider. It is not for me simply to find that the Protocol works well in any given set out circumstances, or not and therefore interpret it accordingly.

And further

the Protocol gives the right, indeed the obligation to make the initial selection of the expert to the tenant. The landlord’s protection is that the expert must be an expert properly so called (see Protocol, para. 7.1(b)) and this requires him to be both independent and objective. An expert should be able to comply with those requirements even though he is, for example, habitually instructed by parties on one side or the other. There is no obligation on the part of a landlord to proffer a number of different experts for selection.

On the operation of the protocol

It was open to the landlord to elect under 6.3 of the protocol  to give a full response to the letter of claim before the time for expert evidence was due, or after it was provided. In these cases the landlord had been clear it wanted to give a full response before expert evidence and that an SJE should not be appointed until after that response had been received and considered. The claimants had agreed an extension of time for the landlord’s response. It followed that the time for the initial instruction of the expert was also deferred for the period of the response.

In both cases, the claimants had instructed their experts before the expiry of the agreed extension of time.

There was an obligation on the claimant to engage with the landlords’ 6.3 response, both generally and specifically prior to obtaining their experts report. The extent of engagement would depend on the nature of the landlord’s response, but should at least indicate what is disagreed with and a notification that an instruction of an expert (as SJE or as sole expert) would be proceeded with. That gives the landlord to opportunity to agree an SJE and to provide separate instructions if they wish to do so – this should be within 7 days.

In both these cases, the claimants had not given a reasoned response to the defendants’ substantive response or notified the defendant that they would proceed to instruct an expert.

However, the defendant’s position on instructing experts was that it was not appropriate and relied on para 7.1(a) and (c) of the protocol. This was wrong.

The reliance by Curo on Protocol 7.1(a) is misplaced. This is a warning to the parties that in litigation the court will only allow expert evidence to be adduced (and therefore potentially fall within a costs entitlement one way or the other) if it considers that it is reasonably required to resolve the proceedings (CPR 35.1). It is not a prohibition on adducing expert evidence at this stage in accordance with the Protocol.

An expert should only be instructed if there was a dispute. Specific performance may be in dispute even if the defects were not.

Although the lessor may select the means of remedying the defect where there is more than one, that means must be reasonable – see Dame Margaret Hungerford v Beazeley (1994) 26 HLR 269, and there may be a dispute as to whether the selected means is reasonable.

Appointment of an expert must be in good faith, but the protocol is based on the presumption that at the initial stage (whether the landlord has provided a reasoned response or not), expert evidence will usually be required and that should be an SJE, failing which, a joint inspection.

The landlord can object to the tenant’s proposed SJE, for arguable reasons, but the parties must then seek to negotiate an acceptable SJE and act reasonably in this.

The protocol does not require a substantial delay because the landlord has provided a full 6.3 response, but the response must be considered and responded to.

That the landlord has had its own expert examine the property does not change anything. If they have and rely on in-house expertise, but deny the defects or propose limited remedial works, then it is reasonable for the tenant to appoint an expert.

In these cases, there were clear disputes as to disrepair and works. The claimants’ surveyors were not appointed in bad faith. They should have been sent and asked to comment on the defendants’ in-house surveyor’s reports.

But where a landlord has put forward a proposal to resolve the dispute that the tenant doesn’t accept

a landlord who maintains that expert evidence is inappropriate at that stage will inevitably face the proposed appointment of a sole expert by the tenant if that is what the tenant chooses to do. In most bases the landlord cannot preclude the appointment of any expert, and a sole expert is the only type that in the absence either of consent from the landlord to a SJE, whether with one set of instructions or two.

As to the landlords’ argument that an SJE should nt be permitted or appointed because a court would be unlikely to allow the landlords to adduce their own expert reports at trial, this was not realistic. Nor was their argument that they would not be allowed an expert because they had their in-house surveyor’s reports. The in-house surveyor could produce a part 35 report, notwithstanding his employment (see Field v Leeds City Council (1999) 32 HLR 618). Or if they wanted another expert, they could ask for one. That was up to the landlords.

Returning to protocol compliance, the protocol at para 7.7(a) says expert’s fees should be agreed at the outset. So the letter of claim should give that information. That was not done by the claimants here.

The expert should be instructed to advise on the dispute as it subsists between the parties. A sole expert should be provided with and asked to comment on any letter of response received from the landlord and any included report. That was not done here and there was no good reason why not.

Outcome.

Strike out had been largely been abandoned by the landlords, but there was no good reason for it to be considered anyway. There had been no bad faith in operating the protocol on the part of the claimants.

But the claimants were in breach of the pre-action protocol, in that:

i) They had failed to supply fees or charging rates with the proposed expert’s CVs

ii) They had instructed their expert prior to the expiry of the agreed extension for the landlord’s 6.3 response (albeit in these cases with no consequence).

iii) Failure to notify the landlord that the tenant disagrees with the landlords’ assertions or proposals and will be proceeding to instruct an expert. This would have given the landlord, however unlikely it may be, to provide its own instructions to an SJE.

iv) failure to provide the landlords’ response and in-house report to their instructed expert. This risked making their experts’ evidence useless and suggested they considered the landlords’ responses irrelevant.

A trike out of claims was inappropriate. The breaches also didn’t justify barring the claimants’ experts’ reports. Obtaining them, per se, was not necessary breach of the protocol.

The breaches of protocol, however

do indicate that the tenants were not really considering the possibility that the expert might be a SJE, or that the expert should consider the landlord’s response.

The appropriate remedy was an order that the claimants could not recover the costs of instructing and obtaining the evidence of their experts, whatever the outcome of the litigation; and that any part 35 questions to the experts by the defendants should be borne by the claimants.

The judgment was distilled into the following points of principle:

Comment

Now the usual warning. This is a county court judgment, so not binding in any way. But it is a Circuit Judge decision, so of effect in the Bristol area, and of persuasive value elsewhere. Now, having said that…

Oh.

I suppose we can describe that as a narrow victory for the landlords, but a somewhat Pyrrhic one. They obviously hoped for something rather more substantial than just not having to pay the claimants’ experts’ fees, should the claims be successful.

What the judgment amounts to is a full blown assertion of the pre-action protocol stages and purpose, and a complete rejection of the landlord’s argument that para 7.1(a) means that they can argue that expert evidence is not required in every case as ‘not necessary’. The landlord does not get to determine whether it is necessary and the protocol envisages that it will almost always be.  The landlord does not get to delay instruction of an expert – or a serious, good faith discussion of a possible SJE – simply by saying they don’t think an expert is needed.

This is a line I have increasingly seen in initial responses from landlord’s solicitors, and have had to point out is nonsense in reply on a lot of occasions recently, so it is was obviously a ploy doing the rounds. As a blanket response, which it is, it is plainly ridiculous. As the judgment says, para 7.1(a) is simply a warning that the court will not allow expert evidence beyond that necessary in a subsequent claim.

Nor does ‘we are sending our in-house surveyor’ get any let off per se, absent an agreement to delay the time for a 6.3 response.

Firstly, the landlord has to either get this done within the 20 working day response period, or seek the claimant’s agreement to an extension of time for a full para 6.3 substantive response.

Second, it is no good saying it is not a ‘part 35 report’ so not a sole party expert if the landlord does then want to rely on the report at a later stage – you can’t have it both ways.

Thirdly, the parties – both parties – have to take instructing an SJE seriously.

I may sound deeply nostalgic, but it was not that long ago that I would routinely get an SJE agreed with a defendant landlord. There were surveyors that both sides would consider reliable. I can only say claimant and defendant solicitors should really think about this once again.

And then, the whole ‘poor us, we are facing so many unjustified claims now’ line is not really a defence or a reason to breach the protocol.

But now the claimant side.

First off, do not breach protocol without good and explained reasons. If you have agreed an extended time for a 6.3 response, stick to it. If you disagree with the 6.3 reply, saying so and that you are instructing an expert. This is not rocket science.

Second, a letter of claim saying

‘Our client considers there to be potential issues to the roof. These issues may be aggravating the issues present within the roof.’

without actually saying what the alleged result of these ‘issues’ was? Seriously? Where is the section 11 or section 9A issue? This is just not good enough. A letter of claim does not need to be wholly precise in the defects alleged – after all, the cause of water penetration or condensation mould may not be clear at that point, but there does at least have to be a relevant defect alleged. As described, the letter of claim is at least in part incompetent and embarrassing.

Second, how can referencing an agency (‘C7 Surveyors’ or ‘TLB services’ here) as the proposed SJE be sufficient? It has to be a specific expert, or at least a named few alternatives.

Thirdly, if you have a substantive para 6.3 response from the landlord, you have to respond to it. The response might be terse, but you can’t pretend it hasn’t been made, or doesn’t need a reply.

And finally, this thing on expert’s fees? Well yes, I suppose technically the protocol requires this, but – being nostalgic for a few years ago again – the likely fees were known and the only issue was agreeing a 50/50 split, so this simply wasn’t a problem.  But I doubt that the fee of any reputable surveyor could be obtained in advance, it will depend on the property and the issues. It seems to me that an hourly rate, charging rate or an indicative fee would suffice here.

Part 2 of reports from the front line of the housing conditions wars will follow shortly, this one concerning claimant’s pre-issue costs and a challenge to Lee v Birmingham.