Lawyers who act for tenant’s in housing conditions cases need
to be aware of and to understand the rules on allocation. Special rules apply because
of the difficult nature of the cases, which normally involve an application for
Specific Performance – an equitable remedy.
The rule is in effect that if you have a claim for a tenant where
you are seeking an order for work to be done, the case will be allocated to the
fast track if the estimated cost of the work is over £1k or if less than £1k,
that the value of the damages claim exceeds £1k. In fact, what the rule says is
that will the normal allocation. So it is not automatic. This is leading to some
very questionable allocation decisions.
Despite the clear wording of the rule many courts are
allocating to the small claims track anyway. The argument is that the cases are
straightforward, in fact they aren’t. Other reasons given are that the value of
the repair is only above the line by a bit (!). It was reported to me in one
case that the judge observed that the court was familiar with dealing with
these cases.
This is all very alarming and out of step with the rule
itself, the practice direction and even some comments from the Court of Appeal.
Let’s start by looking at PD16 (1) –
(1) Where the court is to decide
whether to allocate to the fast track a claim for which the normal track is the
fast track, it will allocate the claim to the fast track unless it believes
that it cannot be dealt with justly on that track.
So, 26.9 says
that the fast track will be the normal allocation. The Practice direction goes
on to say that the court will allocate to the fast track – ‘unless
it believes that it cannot be dealt with justly on that track’.
The
main impact of Small Claims Court allocation is to deprive the tenant of legal
representation. Recoverable costs are limited to £260 plus a payment of £750
for any expert report. In reality it means that an ordinary tenant of modest
means is not represented. On which planet is it reasonable to say that
the claim cannot be dealt with justly unless the claimant is deprived of the
right to legal representation?
Housing
Conditions cases are not straightforward. In the case of Birmingham City
Council v Lee [2008] EWCA Civ 891, Hughes LJ
observed –
This statement
is not binding as the Birmingham case was about costs, but the principle is
clear. Many, in fact most, tenants require legal help. Courts should take note
of this comment from a senior appeal court. In the same case Hughes LJ also
said in relation to Rule 26 –
The effect of that is: providing
there is a claim for specific performance, a tenant's claim in a disrepair case
will be a fast track case if either the cost of
repairs or the consequential damages claim exceeds
£1000. If, on the other hand, there is no specific performance claim, the
ordinary rule in CPR 26.6 (3) applies
and the claim will only be a fast track claim if its overall value exceeds
£5000. (Now £10,000) (Para 7)
This is language similar to the
practice direction 16. If the claim satisfies the criteria for the fast track,
it will be allocated accordingly. This again is persuasive only. But if it good
enough for the Court of Appeal, it is good enough for a District Judge on
allocation.
For all of these reasons, I would strongly
advise tenants’ advisers to oppose all attempts to dismiss perfectly valid cases
as small claims. They are difficult enough. There can be few things worse than
living in poor conditions. Tenants must be able to present their cases and to
have access to legal assistance.
