The Pre-Action Protocol for Housing Disrepair Cases: a professional guide

The Pre-Action Protocol for Housing Disrepair Cases (the Protocol) governs the steps that tenants and landlords must take before court proceedings are issued. Compliance with the Protocol affects costs recovery, procedural obligations, and the overall conduct of the case. This article sets out the key requirements and practical considerations for solicitors and claims handlers.

What is the Protocol?

The Pre-Action Protocol for Housing Disrepair Cases came into force in October 2003 and is supplemented by subsequent Practice Directions and guidance. It requires parties to exchange information and attempt resolution before resort to litigation, in keeping with the overriding objective in the Civil Procedure Rules to deal with cases justly and at proportionate cost.

The Protocol applies to claims for:

• Breach of the landlord's repairing obligations under section 11 of the Landlord and Tenant Act 1985
• Breach of the Homes (Fitness for Human Habitation) Act 2018
• Claims under the landlord's express repairing obligations in a lease
• Claims arising from nuisance or negligence connected to disrepair

What steps must the tenant take before issuing?

Step 1, Letter of Claim The tenant (or their solicitor) must send a letter of claim to the landlord setting out:

• The full address of the property
• The nature of the defects complained of, in sufficient detail to identify and locate them
• Any special damages already suffered or likely to be suffered
• The names and addresses of any experts the tenant intends to instruct (if known)
• A request for access to inspect and a request for any relevant documents (including previous inspection reports and correspondence about the defects)

The letter of claim should also invite the landlord to nominate a joint expert. If the landlord agrees to a joint expert, a single surveyor is instructed by both parties and their report carries significant weight.

Step 2, Early notification letter (where urgent) Where the defect poses an immediate risk to health or safety, an early notification letter should be sent before or alongside the formal letter of claim, alerting the landlord to the urgency. This supports an application for an interim injunction if the landlord does not act.

What must the landlord do in response?

The landlord should respond within 20 working days (for urgent matters, as quickly as possible). The response should:

• Confirm whether the defects are accepted or disputed
• Confirm whether access is agreed and when
• Confirm whether a joint expert is agreed
• Set out any documents the landlord intends to rely on
• Provide a schedule of any works the landlord proposes and estimated timescales

A landlord who fails to respond, or responds inadequately, may face adverse costs consequences even if they ultimately succeed at trial.

Expert instruction under the Protocol

The Protocol strongly encourages joint expert instruction. If the parties agree a joint expert, the costs of the surveyor's report are typically shared. If the parties cannot agree, each may instruct their own expert, but the court will need to give directions on how the evidence is to be managed.

Where a joint expert is instructed, the letter of instruction must be agreed between the parties. The expert reports to both sides and their findings are central to any settlement or trial.

What happens if the Protocol is not followed?

Non-compliance with the Protocol can have serious consequences:

• Costs penalties: a court can impose cost sanctions on a party who fails to comply with the Protocol, including ordering an otherwise successful party to pay the other side's costs
• Stay of proceedings: the court can stay proceedings to allow the parties to comply with pre-action steps
• Adverse inferences: a party's failure to respond or cooperate may be taken into account in the court's assessment

Courts expect parties to have genuinely attempted resolution before issuing, and evidence of good faith Protocol compliance strengthens a claimant's position on costs.

When can proceedings be issued without following the Protocol?

In genuine emergencies, where the defect poses an immediate risk to life or health, proceedings can be issued, and an application for an interim injunction made, without full compliance with the Protocol. The court will take the urgency into account. Where proceedings are issued urgently, the solicitor should document the reasons why Protocol compliance was not practical.

Key practical points for claimant solicitors

• Send the letter of claim as early as possible, the 20-working-day response period starts on receipt
• Keep contemporaneous records of all communications with the landlord
• Document any refusal to agree to a joint expert and the reasons given
• Do not issue until the Protocol period has expired, unless there is an urgent reason
• Advise the client clearly on the Protocol's purpose and the risks of non-compliance

When should I contact Support for Tenants?

Support for Tenants handles housing disrepair claims and works with solicitors and claims handlers on Protocol compliance and case preparation. For professional enquiries, call us.

Call us on 0800 030 4669.

Sources

• Pre-Action Protocol for Housing Conditions Claims, England (justice.gov.uk)
• Landlord and Tenant Act 1985, Section 11 (legislation.gov.uk)
• Homes (Fitness for Human Habitation) Act 2018 (legislation.gov.uk)

Related articles

• Witness statements in housing disrepair claims, a professional guide