Any practitioner who acts in Housing conditions cases, works within the framework of the Pre-Action Protocol for Housing Conditions Claims (England).
A separate protocol covers Wales.
The normal practice for those acting for tenants, is to send a Letter of Claim under paragraph 5. I will come back to this shortly.
There is an increasing tendency for some landlords, particularly certain local authorities, to respond to the letter of claim by, effectively refusing to engage. They do this by referring to paragraph 4 of the protocol that deals with ADR. The argument goes that tenant must exhaust the ADR options set out in Paragraph 4 prior to sending the letter of claim. They refer to their internal complaints’ procedure and say that the tenant has failed to use this first. Some even say that they treat the letter as an initial complaint and will deal with it accordingly.
What they are saying, in effect, is that paragraphs 4 and 5 are sequential and you can’t send a letter of claim until you have used their complaint’s procedure.
The purpose of this note is to show that this argument is misconceived and should be rejected.
Paragraph 4.1 of the protocol says –
4.1 The parties should consider whether some form of alternative dispute resolution (ADR) procedure would be more suitable than litigation and if so, try to agree which form of ADR to use. Both the landlord and the tenant may be required by the court to provide evidence that alternative means of resolving their dispute were considered.
The courts take the view that litigation should be a last resort, and that claims should not be issued while a settlement is still actively being explored. Parties should be aware that the court will take into account the extent of the parties’ compliance with this Protocol when making orders about who should pay costs.
It then goes on to provide examples of forms of ADR within which the parties might agree which form of ADR to use. It does not say that the landlord can dictate which form of ADR is acceptable and that they can otherwise refuse to comply with the protocol.
This is not to say that it will never be appropriate to use the complaints’ procedure. But it is an ‘option’ not a pre-condition. Of course, there may be reasons why it is not appropriate –
1. If the tenant has been complaining about repairs, why has the landlord not invoked the procedure anyway,
2. Would use of such procedure have resulted in work being done?
The parties are expected to consider whether ADR is preferable to litigation. It does not say that it is an alternative to working under the protocol itself. A letter of claim is not litigation. Indeed, the letter addresses many issues that can impact the effectiveness of ADR. For example, the template letter at Annexe A invites the landlord to inspect and then continues -
If you intend to carry out works at this stage, please set out a full schedule of intended works including anticipated start and completion dates and a timetable for the works
This encourages the parties to agree, if possible, what needs to be done and when. Such agreement can be an important part of settlement discussions, thus avoiding early litigation. It is not left open to landlords to say that they refuse to consider this unless the tenant adopts their internal complaints’ procedure. The template letter goes on to deal with experts and invites proposals for settlement. This is all designed to put the parties in a position from which they can take stock (Para 8) and try to resolve the claim without court proceedings.
The arguments presented by landlord’s are contradictory. The protocol itself is designed to –
“.. encourage the exchange of information between parties at an early stage and to provide a clear framework within which parties in a housing conditions claim can attempt to achieve an early and appropriate resolution of the issues.”
That is the point. There is nothing to suggest that a landlord can say – “I am not talking to you because your client has not followed one particular option”. That itself flies in the face of the concept of a protocol.
All parties are expected to work within that framework. Landlords are in effect justifying acting in breach of the protocol by alleging that the tenant has followed the protocol!
Of course, the landlord cannot be forced to engage with the protocol. But there are costs sanctions for unreasonable failure to comply – 1.3.
I would respond by advising the landlord that it is a matter for them whether they follow the protocol, that you intend to proceed under that protocol and you will bring the conduct to the attention of the court when costs are considered. I would also emphasis that you are willing to consider ADR provided the landlord is willing to exchange information to enable this to take place in a meaningful way.