Disrepair… the new PPI?

Victoria Curran, Brown Jacobson LLP and Russ Kirman, Riverside

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The Changing Litigation Landscape• Falling levels personal injury claims

• PPI claims deadline is looming (August 2019), with a huge public awareness

campaign by the FCA

• Claimant’s solicitors and CMCs will focus their efforts elsewhere– Claims Management Regulator Annual Report 17/18 “highlights”

• CMCs turn from holiday sickness to housing disrepair cases

• Increase in activity in housing disrepair claims during the year “which has formed part of a wider upward trend of property

related complaints”

• Activities include reports of door –to-door canvassing

• Housing disrepair is one of the few sectors seeing a steady increase in turnover from £0.6m in 15/16 to £1.5m in 17/18

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Why Disrepair Claims?

• It makes financial sense to the Claimant’s solicitor

• Local authorities and housing associations are seen as soft targets

• There is a perception they won’t have to work particularly hard for the money

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What Can We Do About It?

• Apply the law

• Collaborate – can we learn from the financial institutions and their approach to

PPI?

• Adopt the best possible strategy for you but be prepared to adapt

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Let’s Consider “Client A” – Letters of

Claim Received

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Our Strategy – Hitting Claimant

Firms Where it Hurts * • Firm stance – repudiate

• Consider injunctions to undertake repairs

• Limit opportunities for building costs where possible

• Defend to trial?

* Other strategies are available

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Apply The LawPre-Action Protocol for Housing Disrepair Claims

Breach of which part of the Housing Repair Protocol?• Paragraph 2.1 (b) - the aims of the protocol include promoting “the speedy and appropriate carrying out of any repairs which are the landlord’s

responsibility”• Paragraph 6.3 (d) – when responding to the letter of claim the landlord should provide “a full schedule of intended works, including anticipated start and

completion dates and a timetable for the works” • Paragraph 7.1 “expert evidence should be restricted to that which is necessary”

“in some cases it might not be necessary to instruct an expert to provide evidence of disrepair…It may be advisable for tenants to take photographs or video footage of any defects before and after the works.”

• Paragraph 7.6 – “Tenants must allow the landlord reasonable access for inspection and repair in accordance with the tenancy agreement.”

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Apply The Law cont.• Tenancy agreement

• Pre-action Protocol paragraph 7.6

“Tenants must allow the landlord reasonable access for inspection and repair in accordance with the tenancy agreement”

• S.11(6) Landlord and Tenant Act 1985

“In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.”

• S.16 Housing Act 1988

“It shall be an implied term of every assured tenancy that the tenant shall afford to the landlord access to the dwelling-house let on the tenancy and all reasonable facilities for executing therein any repairs which the landlord is entitled to execute.”

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“I am Sparticus / Client A”

• A brief history

• Claimant tactics

• Who is driving these claims?

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Disrepair – The Known Costs, the Hidden

Costs and the Whole Costs to An Association • It’s all about you!

• Rental costs and arrears

• Repairs escalation

• Inspections and no access processes

• Time and costs

• Reputation

• Bigger risk

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Homes (Fitness for Human Habitation) Act

2018• Applies to any tenancy agreement beginning on or after 20 March 2019

• As of 20 March 2020, will also apply to tenancies entered into before 20 March 2019

• Implies a covenant that the dwelling is fit for human habitation

• Includes common parts

• If unfit, landlord has a reasonable period of time to undertake repairs

• A wider remit?

• What could happen really?

• Putting it in context… on average 13% of housing stock may not be up to standard

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A Light at the End of the Disrepair Tunnel?

• MOJ consultation to extend the use of Fixed Recoverable Costs– Extend FRC to non-personal injury fast track claims

Allocation to Fast Track in 4 circumstances:• Outstanding repair works of OVER £1,000 in value; or

• Outstanding works LESS that £1,000 but likely damages of OVER £1,000; or

• No outstanding works but likely damages of over £10,000; or

• Complexity of issues

– Creation of 4 new Fast track bands• Band 3 for housing disrepair

• Band 4 for complex housing disrepair claims

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Proposed Fast Track FRC

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Over to you• Have you had a similar experience?

• What tactics are you using?

• Opportunities for collaboration?

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Victoria Curran Russ Kirman

Partner – Browne Jacobson LLP Insurance Manager - Riverside

T: 0115 976 6509 T: 07973 671584

E: victoria.curran@brownejacobson.com E: russ.kirman@riverside.org.uk