Lancastle v Curo Group (Albion) Limited [2025] EWCC 48

[2025] EWCC 48

Venue IN THE BRISTOL COUNTY COURT

LANCASTLE v CURO GROUP (ALBION) LIMITED L01BS645

BAILEY & BENNET v CURO PLACES LIMITED L01BS415

JUDGMENT

Introduction

Between

LancastleClaimant

Curo Group (Albion) LimitedDefendant

Date 2025-06-23

[1]These applications concern the approach to be taken by tenants of residential property who wish to bring to court complaints against their landlords concerning allegedly defective or dilapidated properties. More specifically they concern when and in what circumstances it is appropriate for a tenant to obtain an expert report as to dilapidations prior to issuing proceedings; whether he should not do so prior to the ending of initial negotiations; what the effect on the Pre-Action Protocol for Housing Disrepair Claims (‘the Protocol’) of agreed extensions of time for compliance may be; the nature of the report that should be obtained; how statements of case should be drawn by reference to such reports; and what the effect of defective compliance with the Protocol or CPR 35 should be.

[2]The Defendants which I will refer to collectively as ‘Curo’, assert that it has become commonplace for housing disrepair claims to generate expert evidence from an early stage, without proper consideration being given to the issues in the case or the purpose of the Protocol. Such experts are nominated by the tenant’s solicitor on a ‘take it or leave it’ basis.

[3]Although the applications concern similar cases which raise generic issues, and for that reason they have both been listed to be heard before me at the same time, it will be necessary to consider the merits of each case individually.

[4]The Defendants’ applications have asked for the claims to be struck out under CPR 3.4(2), alternatively have sought summary judgment in favour of the Defendants, and in the further alternative have sought directions debarring the Claimants from relying on their chosen Part 35 expert evidence, directing the future appointment of a Single Joint Expert, requiring the Claimants to amend their Particulars of Claim by excising reference to their presently chosen experts and their views, and consequential directions.

[5]The Defendants have filed witness statements by David Harry, solicitor, dated 14 November 2024 (Bailey and Bennet) and 5 December 2024 (Lancastle) respectively in support of each application. In the Bailey and Bennet case the Claimants have filed a witness statement dated 2 April 2025 by Joseph Washington, solicitor, whilst in the Lancastle case filed a statement dated 2 April 2025 by Laura Walsh, solicitor. In each application the Claimant has filed a further statement dated 9 April 2025 of Rebecca Rees, solicitor, in response.

[6]The tenor of the application is set out in Mr. Harry’s witness statement: “6….. The Court is asked to note that the behaviour in this claim is replicated in many claims across the country and is costing the social housing sector a significant amount of money to defend claims like this one which ought not to have been issued in the first place.” (my emphasis)

[7]Ms Rees is the head of the Property Disputes team at Hugh James solicitors. She plainly has much experience in dealing with disrepair cases, both acting for Curo and for other landlords. She said this:

“6. As I will explain in this statement the conduct of the Claimants in instructing an expert in breach of the Protocol (as happened in both claims) is in fact common practice in the industry, it results in Defendants being entirely excluded from the instruction of experts and renders the Protocol meaningless. For reasons I will detail below the effect of this practice is to ‘tie the hands’ of Defendant landlords and leave them little option but to settle a claim they don’t accept and pay the tenant’s legal costs which are often disproportionate to the underlying claim, or alternatively to obtain their own report and then fight the claim at significant cost and risk.….. 10… it is vanishingly rare for there to be either no expert or a single joint expert appointed save in those cases where we have sought the intervention of the court in an application such as the ones we have made in these two claims. In my view that is because of the steps almost all claimant solicitors take in the very early stages of each claim. In effect what they do is demand that a Defendant agrees with their choice of expert right at the outset in the letter of claim and if not the Defendant only has the option to have no expert at that stage or to appoint their own. There is a complete failure to properly engage with the question of what is actually in dispute, or what expert evidence is required to properly resolve such issues and it is extremely rare to see a Claimant give the Defendant a proper opportunity to be part of the agreement of, and instruction of the expert…”

Representation

[8]The parties have been represented as follows. Miss Alice Richardson, counsel, instructed by Hugh James solicitors represents the Defendants. Mr. George Murray, counsel instructed by Satchell Moran solicitors, represents Miss Lancastle. Mr. Shannon Eastwood, counsel instructed by Bond Turner, represents Mr. Bailey and Miss Bennet. I am grateful to them for their submissions, both oral and in writing. Preliminary points

[9]I have had to deal with two preliminary points concerning these applications.

[10]Mr. Eastwood contended that it was inappropriate for these two cases to be heard together, and in potential breach of CPR 33.12. I do not consider that this is so. His main concern appeared to be that the evidence pertinent to one case might be relied upon by the court in determining the outcome of the other. In my view these two cases raise common questions which make it appropriate for me to deal with them together. Curo is also seeking general guidance applicable to cases of this sort. For that reason on 21 March 2025 I refused an application made by the Claimants in Bailey & Bennet to deal with the two cases at different times. I will of course consider the position of each case on its own facts. Given that both cases are heard at the same time, use of their documentation in a public court during the hearing is not in breach of the restriction in CPR 33.12. But if it were I would grant permission for the material to be disclosed at the hearing under CPR 33.12(1)(b).

[11]Next, the N244 applications in Bailey & Bennet and Lancastle sought to strike out the claim by reference to CPR 3.4(2)(a) only. Mr. Harry’s witness statements in support makes it plain that Curo rely on (b) (abuse of process) and (c) (failure to comply with rule, Practice Direction or Court Order) in the alternative. I have ordered that the application to strike out be based on all three grounds, it being plain that Curo sought to rely on all three and there being no prejudice to the Claimants to allow the applications to be argued on that basis. For the avoidance of doubt I have given Curo permission to amend its application to rely on all three grounds. Bailey & Bennet – Facts

[12]Curo Places Limited granted Mr. Bailey and Miss Bennet a tenancy of 45 Arcadius Way, Keynsham.

[13]On 19 April 2023 Bond Turner sent Curo a letter of claim in accordance with the Protocol. It asserted, in summary, that the roof was defective although what the precise defect was not set out, the letter saying that:

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

There is also reference being made in the letter to a report of missing tiles on the roof ‘that may be contributing to the issues’. The letter then complained of defective doors and seals to the downstairs hallway and to the living room, allowing drafts and water penetration. There was an insect infestation (unspecified) alleged to the living room, damp and mould to the ceiling and walls of the bathroom, including degraded plasterwork; and cracks to the walls and ceiling in the bathroom.

[14]That letter proposed ‘C7 Surveyors’ as an expert, and included the CV of ten qualified surveyors, all of which appeared on C7 Surveyors’ notepaper. The provisions for appointment of an expert in the letter was as follows: Expert We propose that the parties agree to jointly instruct a single joint expert, being C7 Surveyors to carry out an inspection of the property and provide a report. We enclose a copy of their CV, plus a draft letter of instruction. Please let us know if you do not agree to his appointment. If you do not agree, please let us know your reasons within 20 working days of receipt of this letter. If we fail to hear from you, then in accordance with 7.2(a) of the Housing Conditions Protocol the expert will be instructed as a single joint expert. If you agree to the expert being instructed as a single joint expert, but wish to provide your own instructions, you should send these directly to C7 Surveyors within 20 working days of this letter. Please provide us with a copy of your letter of instructions. If you do not agree to a single joint expert, we will instruct C7 Surveyors to inspect the property in any event. In those circumstances, if you wish to instruct your expert to attend at the same time, to carry out a joint inspection please let us and C7 Surveyors know within 20 working days.” The letter annexed the CVs of 10 qualified surveyors, all of whom presently hold positions with C7 Surveyors as consultant or otherwise. No cost for the work, basis of charging or rate was provided.

[15]On 27 April 2023 Hugh James responded noting that the deadline under the Protocol for the Letter of Response was 24 May 2023. They indicated that Curo wished to inspect the property, stating ‘Please note that the inspection will be carried out by a qualified surveyor’. Curo would respond thereafter. It objected to C7 surveyors appointment: “Expert We note that your position is that unless agreement is reached about works within 20 working days (by which we presume you mean the end of the period provided by the Protocol for our client to respond to the claim as set out above) you propose the instruction of an expert from C7 Surveyors. We refer to paragraph 7.1(a) and 7.1(c) of the Protocol. The Protocol emphasises that expert evidence is not necessarily required in every case. Unlike a private landlord our client has its own specialist maintenance team, and we consider that it is appropriate for them to be given an opportunity to inspect and respond to the claim before we consider whether an expert is needed. We will do our best to ensure that response is with you within the period set out above. Even if our client does not agree that works are required, it must be given an opportunity to explain why and to engage with you and/or your client as to why that may be before consideration is given to instructing an expert. It may well be after all that your client is prepared to accept our client’s position once it is fully explained. We have a duty to attempt to resolve the matter and only instruct an expert after properly taking stock of what is in issue. To suggest that unless our client agrees works instructing an expert is inevitable is misconceived.” (my emphasis)

[16]The letter then specifically objected to C7 Surveyors on the basis that they were not local to the area The address given for C7 Surveyors on the CVs was an address in Manchester. The CVs did not disclose any other address. , and that no fees had been provided.

[17]On 20 May 2023 the parties agreed an extension of time for a response under the Protocol to 6 June 2023.

[18]Mr. Francis inspected the property for Curo on 20 April, and a full response was provided by Hugh James’ letter of 2 June 2023. That response included Mr Francis’ report. Mr. Francis was employed by Curo as a Senior Property Standards Surveyor. He is a student member of RICS and CIOB. He would, in my view, be qualified to give evidence as an expert if such an application was made. Although the report is in a typical format for a surveyor’s report on dilapidations it does not purport to be compliant with the requirements under CPR Part 35. Indeed that is part of the gist of the dispute – the landlord contends that its report at this stage is not an ‘expert’s report’ within CPR 35 or as contemplated by the Protocol; the tenants contend that in reality it is and that the way they achieve equality of arms is either to have a joint expert as specified by the Protocol, (that is, immediately after 20 days) or its own expert.

[19]As far as the roof was concerned Mr. Francis’ report said this:

“It was unclear as to what exactly was referred to as the roof being defective as included in the letter of claim. The external roof covering was intact with no loose or missing tiles at all, and upon inspection of the loft space the insulation was found to be dry and there was no indication of any roof leaks at all with the roofing under felt intact and no holes or rips present.”

[20]He found no defect in the doors. As to the mould in the bathroom, he carried out thermal imaging which showed no misplaced or missing insulation. The ventilator in the bathroom was found to be turned off. When turned on it was compliant with Building Regulations. In Mr. Francis’ view the damp and mould was caused by condensation through non-use of the ventilation system. There was no actionable breach of obligation.

[21]Mr. Francis proposed that the hallway and living room doors be eased, and the bathroom washed of mould and a trickle vent fitted. These works were to be carried out as a matter of goodwill rather than legal liability, although for completeness Mr. Francis had stated that the legal requirement to instal trickle vents in such locations had arisen in June 2022, and the property was constructed in March 2021.

[22]Hugh James’ letter summarised the report, and then said this:

“Experts We do not consider that an expert is required in this case. Our client’s qualified surveyor has attended the property, confirmed the required works and steps will now be taken to carry out the goodwill works. We consider the next step in this matter is for you to consider this response, take your client’s instructions and return to us in order to narrow the issues and assess the extent of any dispute. Our client should also be allowed to carry out the work they have scheduled. If after proper consideration the parties consider an expert should be instructed then we can discuss the instruction of a single joint expert in accordance with the Protocol and CPR Part 35.”

[23]The letter asserted that the landlord was complying with the Protocol, and stated that it did not consider that Alternative Dispute Resolution was appropriate at that stage.

[24]On 2 June 2023 the tenants instructed Mr. Andre Hedges MRICS as their own expert. The report is given under the necessary declaration for a report under CPR Part 35. He inspected on 24 July 2023 and produced his report on 3 August 2023. There is no reference to Hugh James’ correspondence or to Mr. Francis’ report. He noted that there was water entry to the roof void, and suggested the water might be entering through a ridge tile. The guttering was not level. There was some plaster damage to an entrance door reveal. The hall and living room doors required easing. The damp in the bathroom had probably been caused by the water ingress through the roof. The kitchen extractor fan was defective and required replacing. The total cost of the work was £2,760, inclusive of a dehumidifier, professional fees, scaffolding and VAT.

[25]That report was sent to the landlord on 20 December 2023. Hugh James responded by noting the delay, the failure to respond to their latest correspondence and enquiring as to why a joint inspection had not been arranged. Instruction of the expert was ‘unnecessary, premature and disproportionate’. The response from Bond Turner was that ‘We proceeded to instruct our own surveyor on the basis your client arranged their own inspection’. Curo had not been informed of the inspection due to ‘an administrative error’.

[26]On 22 February 2024 Hugh James again raised concerns in the same terms as before as to the instruction of an expert. It then took issue with the content of the report, denying water penetration to the roof or the inappropriate nature of the tile fixing. It denied issues with the guttering. The work to the door had been carried out, and the report was therefore unnecessary in that regard. As to the ventilation fan, it notes that the building was relatively new; was working during Mr. Francis’ inspection and was probably simply turned off. I would note that the experts or the parties appear to be at cross-purposes here. Mr. Francis’ report concerns the bathroom extractor fan (which is visible in the photographs attached to Mr. Hedges’ report). Bond Turner had not raised that initially as a defect. Mr. Francis was making the point that it was turned off at the mains, and that was a likely cause of condensation and hence damp. Mr. Hedges for his part refers to the kitchen extractor fan as not functioning, and has included that in the addendum section of his report.

[27]Hugh James’ letter also denied the need for a dehumidifier or scaffolding, and ended with these parting words:

“We suspect these items have been included purely to increase costs, given that the value of the work without these superfluous items would be less than £1,000 The relevance of this assertionmay well be that where a claim for specific performance of a covenant to repair is alleged to cost more than £1,000 the Civil Procedure Rules suggest that the case should normally be allocated to the Fast Track (where costs are recoverable) rather than the small claims track (where costs are not generally recoverable). The unstated inference that it seeks to draw is that the cost of repair is not genuine, but tactically inflated. . Conclusion Mr. Hedges report has failed to identify any necessary works which were had (sic) not already been raised by our client. It was entirely unnecessary to obtain his report, which would have been obvious if you had taken the time to review and respond to the works raised by our client. His report has served only to increase costs and delay the claim. It is clear there is no claim here, and we look forward to receiving confirmation that the claim has been withdrawn”

Conclusion

[28]After some repetitious correspondence between solicitors as to the propriety of Mr. Hedges’ instructions, the claim was issued on 22 August 2024. It claims damages between £1,500 and £3,000 and specific performance ‘above £1,000’ arising from disrepair. The Particulars of Claim pleads the lessor’s express repairing covenants to standard effect, and the statutory implied term as to repair and fitness for human habitation. The particularisation of the disrepair refers to Mr. Hedges’ report, and then paraphrases his findings. It appears that the defects to the doors, insofar as they existed, were cured by the works carried out by Curo (See para. 6(iv) c.vii).

[29]On 14 November 2024 Curo issued this application in respect of the claim. Lancastle – Facts

[30]Miss Lancastle is a tenant of Curo Group (Albion) Limited at 29 Coronation Avenue Bristol. Curo is a registered provider of social housing. The property is a three bedroomed end of terrace property where she lives with her partner and two adult sons.

[31]On 10 April 2024 Miss Lancastle’s solicitors wrote to the landlord asserting a claim under the Protocol. The letter set out the statutory basis for the claim and summarised the defects complained of, namely damp to the roof canopy and the exterior wall; a failure to clear gutters; a leaking pipe, damp and mould to the bathroom a crack to the wall and ceiling of bedroom 1 leading to damp and mould; damp and mould to bedroom 3 and the living room; requiring the landlord to remedy the defects and asking for compensation. The letter asked for disclosure of all relevant documents (coupled with a threat in default of an application for pre-action disclosure). It advised the landlord that Miss Lancastle proposed the instruction of a single joint expert through TLB Services to carry out an inspection and provide a Part 35 compliant report. The letter continued:

“Please note we will be instructing the expert via TLB Services and, upon acknowledgement of the above, we will provide a copy of our proposed expert(s) for your consideration. Please note we will provide you with a copy of the CV and any proposed appointment dates in further correspondence. Please advise within 20 working days if you agree to this appointment and that you agree to pay 50% of fees if a single joint instruction can be agreed. If you object please advise us of your reasons within 20 working days. If you do not object to the expert being instructed as a single expert but wish to provide you own instructions you should send those directly to our expert within 20 working days of this letter. Please also provide a copy of the letter of instructions to us. If you wish to instruct a single expert, we will instruct an independent expert to inspect the property in any event and, as stated above, a copy of the CV will be provided in advance. If you wish for your expert to attend at the same time to carry out a joint inspection, please advise at your earliest opportunity to avoid any unnecessary delays. Please ensure all arrangements in respect of our client’s property are communicated through us during the time for which we are instructed in order to avoid any unnecessary delays in arranging inspections and subsequent works that may be required.”

[32]By letter of 17 April 2024 Hugh James sought agreement that the claim would be put ‘on hold’ until Curo’s internal complaints process was completed. It stated that Curo would contact Miss Lancastle to arrange for an inspection of the property by a qualified surveyor. A response should be considered before considering whether to instruct an expert, and Curo could not presently agree to TLB being appointed as no personal details for the surveyor had been provided and the costs were not known. If an expert was needed, it must be a single joint expert. It warned that if Miss Lancastle went ahead and instructed TLB herself, Curo might subsequently apply for a different expert to be appointed as a single joint expert.

[33]On 22 April Hugh James acknowledged receipt of Mr Ross Smit ARICS’ CV, responding that it was not yet appropriate to consider whether his appointment as Single Joint Expert was necessary.

[34]On 9 May 2024 Satchell Moran notified High James that Mr. Smit would inspect on 28 May 2024.

[35]The parties’ solicitors agreed that the landlord’s response to the letter of claim would be provided by 21 May 2024.

[36]On 21 May 2024 Hugh James wrote to Satchell Moran setting out their response, and enclosing a report by Mr. Francis. The report stated that an inspection had taken place on 28 April 2024. 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’. It denied that the property was unfit for human habitation. Hugh James did not consider that expert evidence was required, and asserted that Miss Lancastle should have the proposed work carried out and then reconsider the matter, or explain why expert evidence was required.

[37]On 6 June 2024 Ross Smit ARICS provided an expert report on disrepair at the property. The report was provided on the paper of TLB Services, which is the entity that instructed Mr. Smit (para. 1.2). He had been provided with a letter of instructions on 10 April 2024, together with a letter of claim of the same date. He had not been provided a copy of Curo’s response from Mr. Francis. He inspected the property on 28 May 2024. He found various items of alleged disrepair; advised on remedial works and gave an estimate for the cost of repair in the sum of £2,901. It is worth noting that the advice follows the items set out in the letter of complaint of 10 April, and for some of them Mr. Smit advises that there is no good claim. The report is tendered under a CPR 35 declaration.

[38]The Particulars of Claim was issued on 3 October 2024. It annexed the report dated 6 June 2024 from Mr. Smit, and estimated the cost of remedying the defects at £2,091. The claim makes specific assertion as regards the application of the Housing Conditions Protocol in the following terms:

“For the avoidance of doubt, it is the Claimant’s case that the Housing Conditions Protocol was engaged because, despite the Defendant’s knowledge of the disrepair, the matter remained unresolved due to the Defendant’s refusal and/or neglect to carry out works of repair and/or to carry out works of repair in a good and proper manner using good and proper materials, following notification of disrepair. Thereafter litigation became necessary after service of the Protocol letter of claim to promote the speedy and appropriate carrying out of repairs which are the Defendant’s responsibility and to ensure the Claimant receives appropriate compensation.”

[39]The claim seeks specific performance of the outstanding works, estimated to cost in excess of £1,000, damages in excess of £1,000 but not exceeding £5,000, interest and costs.

[40]The Defendant filed an Acknowledgment of Service indicating an intention to defend the claim on 25 October 2024.

[41]On 8 November 2024 the Claimant issued an application for judgment in default of acknowledgment of service and/or of defence, seeking (inter alia) an order that the Defendant carry out the works set out in a Scott Schedule annexed to Mr. Smit’s report, together with damages to be assessed and costs. On 18 November 2024 DDJ Allsop directed that the application be heard by a District Judge.

[42]On 21 November 2024 the Defendant’s solicitors notified the court that the parties had agreed an extension of time for the service of the Defence to 28 November 2024.

[43]On 5 December 2024 the Defendant made its 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.

[44]On 2 April a witness statement from Mrs Laura Walsh of Satchell Moran was filed in response. That statement set out and to a large extent repeated the chronology. However it also gave some detail concerning the way in which Mr. Smit came to be appointed as an expert:

“52. In response to the allegations….. that the Claimant’s intention was to instruct Mr. Smit come what may. This allegation is refuted on the basis that whilst Mr. Smit was the only available independent expert in the area, the expert was only nominated, and no formal instructions were provided. This is common practice in order to arrange a date in the diary outside of any protocol time limits. 53. In the event the Claimant disagreed with the Defendant’s in-house report then at that point instructions were provided to the Claimant’s solicitor to proceed with the instruction of Mr. Smit. The period between 11 April 2024 and 28 May 2024, the date in which the appointment was due to take place provided sufficient time for the Claimant to allow access to the Defendant’s surveyor, proceed with an inspection and review the report albeit this was disclosed one month after the inspection, the Claimant’s solicitor still had time to review and take instructions on the same.”

It is notable that Mrs Walsh’s evidence dealt with the possibility that Curo might instruct its own expert, but not that Curo might want to appoint some other Single Joint Expert.

The Defendants’ contentions

[45]The Defendants say 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.

[46]The consequence of the Claimants’ approach in these circumstances, where the landlord has proffered a suggestion for work, Ms Richardson said, is that they will obtain an untoward litigation advantage, suggesting that Curo is unlikely to be given permission to rely on its in-house surveyor; or the parties will have to incur the excessive costs of instructing separate experts.

[47]In neither case had the letter of claim set out the fees of the surveyor; and in each case the surveyors proffered were not local. These were good reasons for not agreeing to, or objecting to, the proffered surveyors.

[48]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.

[49]The position was summarised this way in Ms Rees’ witness statement:

“94. In these two claims, it is submitted that no expert was in fact necessary. The [Claimants’ expert] reports both largely identify work which the Defendant had already identified. That being the case, the onus ought to be on the Claimant to articulate whether there are any ongoing concerns about the property (confined of course to the issues which have been pleaded) before consideration is given to the need for expert evidence. It is impossible to tell from the pleaded claims (which do not acknowledge the work or explain what the Claimants’ cases is in light of it) whether there is a claim for specific performance or not.”

[50]Although Mr, Harry’s and Ms Rees’ witness statements took issue with the quality of the Claimants’ expert reports, and asserted that many such reports were not truly independent, asserted excessive remedial costs for the purpose of obtaining beneficial track allocations, these last suggestions were expressly not made as regards Mr. Hedges and Mr. Smit. The contentions as to poor quality were pursued. Ms Richardson also contended that the Claimants’ expert reports had not engaged with Mr. Francis’ reports.

[51]Curo relied heavily on a decision of HHJ Hywel James in the Cardiff County Court, Bryant v Trevillis (2023) and I deal with that in more detail below.

The Claimants’ contentions

[52]On behalf of Mr. Bailey and Miss Bennet, Mr. Eastwood submits that the claim is sufficiently well pleaded not to be struck out for deficiency of pleading under CPR 3.4(2)(a). The claim is not bound to fail. Insofar as there may have been a breach of the Protocol by his clients, which he denied, it would be disproportionate to strike the claim out. As to the expert evidence, he submits that it is premature to give directions as to expert evidence prior to the receipt of the defence, which should be considered at the same time as allocation. He denies that the tenants are in breach of the Protocol, contending rather that the Landlord was in breach by instructing its expert Mr. Francis out of the stipulated time and failing to co-operate in the nomination of an expert, or by maintaining that expert evidence was not required.

[53]Mr. Eastwood maintained that Curo was trying to have its cake and eat it. On the one hand it wanted to be able to produce a report by its in-house surveyor, Mr. Francis, but to preclude his clients from relying on the expert evidence which they would have to obtain in order to consider and respond to Mr. Francis’ report. That would be unfair.

[54]He stressed that the defects that fell under the Protocol would often have severe and continuing effects on the tenant. It was for that reason that the Protocol stressed the ‘speedy’ resolution of these claims. In the present case the Defendant had neither admitted the claim, nor given any coherent reason for denying it. No defence had been filed.

[55]Mr. Murray for Miss Lancastle submits that she was not in breach of the Protocol, and that it was not compliant with the Protocol for Curo to submit its own expert report from Mr. Francis whilst asserting that this was not a Part 35 compliant report, or an event that entitled Miss Lancastle to trigger the expert evidence provisions in the Protocol. He denied that the Protocol required the tenant to either discuss the landlord’s proposal or allow them to be carried out before engaging its own expert. What was required, if anything was, was that if the landlord made a counter-proposal the tenant had to consider that before proceeding to obtaining its own expert evidence. In the present case it could prove that it had taken that step, if it was obliged to, by waiving her privileged communications with her solicitors. But the ‘take stock’ requirement at paragraph 8 of the Protocol was engaged only after the production of expert evidence under the Protocol, not before.

[56]As to the strike out, the claim was plain from the pleadings and could not be struck out under CPR 3.4(2)(a). He contended that expert evidence will be required unless and until the allegation ceases to be in dispute, whether by admission or agreement.

[57]He contended that as a matter of fact the obtaining of Mr. Smit’s expert report was compliant with the Protocol. The parties had contemplated and agreed a joint inspection by their individual respective experts. It was not the Claimants’ fault that Mr. Francis had not attended on 28 May 2024. Mr. Francis’ report had been served a matter of days before. That document had been forwarded to the surveyors. He could not say why it had not been referred to by Mr. Smit in his subsequent report, or indeed whether he had actually seen it. Bryant v Trivallis was a decision on its own facts. Bryant v Trivallis

[58]This was a similar application brought in respect of two housing disrepair cases (‘Griffiths’ and ‘Bryant’) in the Cardiff County Court, where judgment given by HHJ James on 27 July 2023. The defendant Housing Association was represented by Messrs Hugh James, as here; the claimant tenants were instructed by different solicitors from those presently. The learned judge concluded that the Particulars of Claim were defective in insufficiently and inadequately particularising the defects alleged (para. 44), albeit that the deficiencies had been remedied in one case by subsequent amendment. The defective pleading was to be struck out if no application to amend had been made.

[59]As to the provision of the expert reports (not I add from Mr Smit or Mr. Hedges) the judge was critical of his instructions and its contents. In Bryant he found:

“27….. It was accepted he was instructed without a formal reply to the Defendant’s letter of response and schedule. He was not the surveyor named by the Claimants in their letter of claim. 28. I find he had been instructed notwithstanding significant outstanding issues and proposals raised by the defendant in their letter of response. Outstanding issue included requiring a response as to the need for an expert report, if one were required whether it should await the works the Defendant was proposing to undertake, comments on the categorisation of works proposed, an agreement as to a suitable expert acceptable to both parties and a response to the surveyor nominated by the defendant.”

[60]As to content, he noted inaccuracies and incompleteness in the report, and a failure to engage with the defendant’s response. In Griffiths the single joint expert was instructed notwithstanding the letter of response querying the need for a further expert report and alternatively proposing a different expert. His report did not deal with the letter of response.

[61]Of more general effect the learned

judge found that there was:

‘[53]…..wholesale disregard by the claimants’ solicitors in both cases to [sic] the pre-action protocol applicable for housing disrepair cases in Wales. The solicitors proceeded to unilaterally instruct an expert notwithstanding unanswered objections raised by the defendant. I would emphasise it is not for either party to unilaterally seek to impose a particular surveyor on the other as a single joint expert. Relevant matters include the split of their work between claimant and defendant instructions, the cost and time scale in the preparation of the report, and that they have the requisite knowledge of the law applicable to Wales. 54. In cases where the defendant has responded to the letter of claim by providing its assessment of the property following an inspection by its suitably qualified employee it is incumbent on the claimant as noted in the pre-action protocol to set out reasons why it is believed necessary for there to be a single joint expert. It is even more incumbent on the claimant to accept whether it accepts or disputes the schedule of repair proposed prior to the appointment of such an expert. ….. 55. The aim of the protocol is to ensure that any items of disrepair are identified and where there is an obligation on the landlord to repair, those repairs are carried out swiftly. If the landlord confirms the items of disrepair and provides a schedule indicating the repair works to be undertaken the necessity of an expert’s report can only be properly assessed after the works are completed. If there is an issue which is fundamental to the case for example the Landlord in response to a letter of claim refuses to accept the responsibility for an alleged defect, which is said is their responsibility, it is probable an expert’s report will be required. However it is the claimant’s responsibility to explain to the Defendant the reason why such a report is required and in any event the engagement of an expert applying the pre-action protocol, the overriding objective and the provisions of CPR 35 should be on a single joint basis unless there are cogent reasons. Those reasons would need to be explained in detail in advance of any instruction of an expert by one party only. One reason could be the extreme nature of the defects. That is not the position [here]. 56. The court expects parties to co-operate as to identifying suitable single joint experts. Each party for example providing the names, terms of engagement and CVs of three suitable experts is a commonly used means of resolving the issue. 57. Where the need for expert evidence is satisfied in housing disrepair cases it would be the exception given the relative low value of the cases for it to be proportionate to separately instructed (sic) experts. The pre-action protocol envisages where expert evidence is necessary it is to be provided by single joint expert.’

[62]The judge held that there were breaches of the pre-action protocol in appointing the Claimant’s expert which whilst not sufficient to lead to the striking out of the claim meant that it was sufficient (by which I take the learned judge to conclude that this was appropriate both to penalise for the breach and to pursue the aims of the protocol) that no permission be given for the Claimants’ experts; a single joint expert was directed, and in fact the local expert proposed by the Defendant and not commented upon by the claimants was approved, with consequential directions. Allocation was deferred until the production of the single joint expert’s report. Background

[63]Curo complains 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.

[64]Whilst I have some sympathy for Curo’s financial position, 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. Of course, to the extent that the meaning of the Protocol and indeed the Overriding Objective reflects beneficial outcomes, then I take that into account in assessing the meaning of those requirements, but that is a different thing.

[65]Equally, 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 Although I note that in Bailey & Bennet the letter of claim enclosed ten CVs. That those were of consultants or employees related to the one company might be thought to lessen the practical choice that Curo was being proffered. , and in this regard my view differs from that of HHJ James in Bryant v Trivallis. The Protocol adopts speed over the greater appearance of fairness arising from a mandatory proffering of choice between experts. Analysis

[66]The first issue is whether, in these circumstances, the tenant was in breach of the Protocol by instructing an expert as a sole expert when they did, namely shortly before or after they had received the landlord’s response, which was within the extended period they had agreed for the landlord’s response.

[67]The Protocol provides for the landlord to give a reasoned (as opposed to a technical) response to the letter of claim either within 20 working days after receipt of the letter of claim, or within 20 days after the receipt of the expert’s report (either that of the single joint expert or an agreed schedule following a joint inspection (para. 6.3).

[68]Paragraph 9 of the Protocol provides:

“Time limits 9 (a) The time scales given in the Protocol are long stops and every attempt should be made to comply with the Protocol as soon as possible. If parties are able to comply earlier than the time scales provided, they should do so. (b) Time limits in the Protocol may be changed by agreement. However, it should always be borne in mind that the court will expect an explanation as to why the Protocol has not been followed or has been varied and breaches of the Protocol may lead to costs or other orders being made by the court.”

[69]The stipulation that ‘..the Court will expect an explanation as to why the Protocol has not been followed’ does not I consider preclude the parties from reaching sensible agreements as to the variation of time limits. Given that the parties may change time limits by agreement, it follows that insofar as the time limits are changed, Protocol requirements that operate by reference to those time limits should change accordingly.

[70]I consider that in both Lancastle and Bennet the tenants agreed to an extension of time for the service of the Landlord’s initial response to the letter before action, and this was intended to be an initial response within the 20 day period prior to the instruction of experts.

[71]The next question is whether the agreement to extend time for a response in the present case has the effect of extending the time after which the tenants were entitled to instruct their suggested respective experts. Clause 7 of the Protocol, relating to experts, provides as follows: 7 Experts General(a) Parties are reminded that the Civil Procedure Rules provide that expert evidence should be restricted to that which is necessary and that the court’s permission is required to use an expert’s report. The court may limit the amount of experts’ fees and expenses recoverable from another party.

(b) When instructing an expert, the parties must have regard to CPR 35, CPR Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims (2014) https://www.judiciary.uk/wp-content/uploads/2014/08/experts-guidance-cjc-aug-2014-amended-dec-8.pdf

(c) In some cases, it might not be necessary to instruct an expert to provide evidence of the housing conditions, for example, if the only issue relates to the level of any damages claimed. It may be advisable for tenants to take photographs or video footage of any defects before and after works.

(d) The expert should be instructed to report on all adverse housing conditions which the landlord ought reasonably to know about, or which the expert ought reasonably to report on. The expert should be asked to provide a schedule of works, an estimate of the costs of those works, and to list any urgent works. Single Joint Expert (a) If the landlord does not raise an objection to the proposed expert or letter of instruction within 20 working days of receipt of the Letter of Claim, the expert should be instructed as a single joint expert, using the tenant’s proposed letter of instruction. (See Annex B for a specimen letter of instruction to an expert.) (b) Alternatively, if the parties cannot agree joint instructions, the landlord and tenant should send their own separate instructions to the single joint expert. If sending separate instructions, the landlord should send the tenant a copy of the landlord’s letter of instruction with their response to the Letter of Claim. Joint Inspection (a) If it is not possible to reach agreement to instruct a single joint expert, even with separate instructions, the parties should attempt to arrange a joint inspection, meaning an inspection by different experts instructed by each party to take place at the same time. If the landlord wishes their own expert to attend a joint inspection, they should inform both the tenant’s expert and the tenant’s solicitor. (b) Should a case come before the court, it will be for the court to decide whether the parties have acted reasonably in instructing separate experts and whether the costs of more than one expert should be recoverable. Time Limits (a) Whether a single joint expert or a joint inspection is used, the property should be inspected within 20 working days of the date that the landlord responds to the tenant’s Letter of Claim. (b) If a single joint expert is instructed, a copy of the expert’s report should be sent to both the landlord and the tenant within 10 working days of the inspection. Either party can ask relevant questions of the expert who should send the answers to both parties. (c) If there is a joint inspection, the experts should produce an agreed schedule of works detailing– i. the defects and required works which are agreed and a timetable for the agreed works; and ii. the areas of disagreement and the reasons for disagreement. (d) The agreed schedule should be sent to both the landlord and the tenant within 10 working days of the joint inspection. ………. Expert’s fees (a) Experts’ terms of appointment should be agreed at the outset, including the basis of charging and time for delivery of the report. (b) If a single joint expert is instructed, each party will pay one half of the cost of their inspection and report. (c) If separate experts are instructed, each party will pay the full cost of the inspection and report by their own expert. Information about independent experts can be obtained from— ……….

[72]As I have noted clause 6.3 gives the landlord the option to respond before the time for the expert evidence is due, or after it is provided. In the present cases the landlord made it clear that it wished to give its full response; that it would be inspecting by a ‘qualified surveyor’ (albeit not an expert for the purposes of CPR 35) and that the Single Joint Expert should not be instructed until after that response had been received and considered. It follows that the tenants were being asked to extend the initial period of 20 working days for the full response, and this they agreed to do. It therefore also follows that the time for the initial instruction of the expert, on whatever basis, was by agreement deferred for the agreed period of the response.

[73]Technically, in Bailey & Bennet an extension of time was given to Curo to respond to the initial letter of claim to 6 June 2023. Mr. Hedges was instructed by the tenants as their sole expert on 2 June 2023. That was therefore premature, as not in accordance with the Protocol. The tenants should have waited for the time allowed for the response before doing so.

[74]In Lancastle an extension of time was given to Curo to 21 May 2024. Mr. Smit was instructed by the tenants on 10 April 2024 again as the tenant’s sole expert, and again prematurely and not in accordance with the Protocol.

[75]The next question, in my view, is whether there is an obligation on the part of the tenant to engage with a landlord’s response both generally, and specifically prior to obtaining the expert’s report pursuant to the Protocol. As to the first question, whilst noting that an obligation to ‘engage’ begs a significant question, the answer is plainly ‘yes’. The Protocol is intended to avoid litigation, if possible. It makes it plain that litigation is to be a last resort and stresses the possibility of no doubt cheaper Alternative Dispute Resolution (Protocol para. Protocol para. 4.1). Where the landlord has produced what appears, as here, to be a full response to the Letter of Claim it behoves the tenant to consider that response. Where it fails to do so it is likely to be in breach of the Protocol.

[76]As to the extent of the obligation to ‘engage’, that will depend on the nature of the response. Some responses will require a counter-response; others a simple recognition of the disagreement. What is a reasonable or unreasonable further step may be a matter for the Court to consider in due course. I doubt if it is possible to prospectively lay down rules as to what should be done in any particular case. But I think as a minimum there should be a statement as to what the tenant disagrees with and (if it be the case) that the tenant is proceeding to instruct the selected expert, and in the absence of confirmation by the lessor or the provision of separate instructions, that will be as a sole expert.

[77]At this stage the lessor will know that the expert evidence is about to be obtained by the tenant, and will have to provide instructions if he wishes the expert to be a SJE with separate instructions, as contemplated by the Protocol para 7.2(b), if that is the course he adopts. It is implicit that he be given time to do that. It follows that the inspection should not take place until the lessor has had a fair opportunity to provide these instructions. A lessor should be able to make that decision and provide those instructions if it chooses to do so within 7 days of receiving the tenant’s notification.

[78]There was no reasoned response to Curo’s letter of response in either of the present cases, or a statement of disagreement before the expert was instructed and the report produced, so that legal issue as to the extent of engagement calls for no further consideration here. It is to be regretted that the Claimants solicitors did not inform the Defendant of their disagreement with the response and their intention to proceed with instructing the selected expert as a sole expert. Had they done to the consequential difficulties might have been avoided.

[79]I turn next to consider the appropriateness of instructing an expert. Curo’s case is that it was not appropriate to instruct an expert at this time and in these circumstances. It relies substantially on the terms of the Protocol para. 7.1(a) and (c) supra, and suggests that experts should not be instructed until negotiations have concluded.

[80]I approach this issue in the following way:(1) 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.

(2) It goes almost without saying that parties should only adduce expert evidence where there is a dispute. If the initial response concedes the defects alleged and the work required, then the only outstanding issue is likely to be the level of damages, and expert evidence is unlikely to be necessary to resolve that.

(3) Specific performance may be in dispute even if the defects are 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.

(4) The appointment of an expert must be done in good faith; that is, for the genuine purpose of resolving a dispute between the parties.

(5) The Protocol is based on the presumption that at this stage, whether or not the landlord has provided a reasoned letter of response, expert evidence will usually be required, and that evidence should be a Single Joint Expert, but if not then will probably be one of two experts who will examine at the same time by a joint inspection.

(6) It is open to a landlord to object to the identity of the expert put forward by the tenant – see Protocol para 7.2(a)). In many cases the landlord will know nothing about the expert and will have to rely on his CV and his qualifications and consequential independence and objectivity. That is inherent in the Protocol and CPR Part 35. If he does object for an arguable reason, then the parties must seek to negotiate an acceptable SJE. They must act reasonably in so doing (Bryant v Trevallis). I consider it unlikely that the fact that a surveyor is habitually instructed by tenants, or is on a tenant’s panel, would be an arguable ground for disqualification. Any professional will be subject to the obligations of his profession, and the requirements of CPR 35 are clear.

(7) The Protocol does not require the obtaining of expert’s evidence to be deferred simply because a Letter of Response has been obtained. The general tenor of the Protocol is that this should be a speedy process, because the tenant may well be enduring very unpleasant living conditions. However, if the tenant does not consider the Letter of Response and engage with it (in the very broad sense I have outlined above – by telling the landlord that the matter is in dispute) then a court may consider subsequently that the appointment of an expert has not been made in good faith.

(8) That the landlord has had the building examined by an expert does not in my view alter matters. If the landlord is in the fortunate position of being able to rely on in-house expertise, then that is its benefit. To the extent that it admits defects, and proposes remedies, then the tenant may be more inclined to accept those proposals as reasonable remediation. But if it denies the defects or proposes a limited basis for the remedial works, then the tenant can I consider reasonably say that the time has come for the expert contemplated by the Protocol to be appointed.

(9) It will normally be difficult for a court to find that an expert has been appointed in bad faith at this stage of proceedings.

(10) The ‘Take Stock’ direction at paragraph 8 of the Protocol provides:

“Taking stock 8 Where the procedure set out in this Protocol has not resolved the dispute between the landlord and the tenant, they should undertake a review of their respective positions to see if proceedings can be avoided and, at the least, to narrow the issues between them.”

This does not mean that the parties must take stock of their respective positions before instructing experts; it requires them to take stock at the conclusion of the Protocol’s process, and before issuing proceedings.

[81]Turning to the facts of these cases, Curo’s reliance on 7.1(c) is inapt. In both Lancastle and Bailey & Bennet there was a dispute as to the issue of disrepair, its extent and the necessity for remedial work.

[82]I do not consider that I should find that Mr. Smit or Mr. Hedges were appointed in bad faith. I note that neither of them appear to have been sent or asked to comment on the Letter of Response produced by Mr. Francis, and I deal with that below. But the assertion on Curo’s behalf that an expert was not required is not made out. The evidence from Ms Lancastle indicated that there was a bona fide dispute as to the necessary work with Curo; and in the Bailey & Bennet case one dispute at least was basic – was the roof water-tight? The parties were in dispute and at cross-purposes over the cause of the mould that was present. In my view, the appointment of an expert was at this stage in compliance with the Protocol and appropriate. Further, I consider that the tenants did ‘take stock’ of the differences between the parties before issuing proceedings. Indeed it is clear from the correspondence that their differences were clear. There was no breach of para. 8.

[83]I turn next to the nature of the expert evidence, namely whether a Single Joint Expert or separate experts was or were appropriate. The Protocol contemplates a Single Joint Expert in preference to joint experts, SJE being the default case, ‘even with separate instructions’ – see Protocol 7.3(a). I note also that CPR 35.4(3A) directs a single joint expert as the usual order if expert evidence is required in small claims, as housing claims may be. A Single Joint Expert is also likely to be quicker and cheaper. Realistically a Single Joint Expert will often operate as a de facto arbitrator, and his opinion will determine the outcome of the case.

[84]Where a landlord has put forward a proposal to resolve the dispute which the tenant does not 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. I do not here consider the position that would arise if the landlord had in its letter of response either proposed alternative instructions, or proposed instructing its own expert and deferring the tenant’s expert’s inspection until there could be an appropriately engaged joint inspection. Neither happened here. In my view the tenants were in each case entitled to proceed with their instructions to their expert as a sole expert, subject to the points I have made about not informing the landlord about the dispute after the letter of response.

[85]As to the point that a SJE should not be appointed or permitted because a court is unlikely to permit Curo to adduce its own expert report at trial, I do not consider that this is a realistic argument. The Protocol anticipates each party having their own expert if they do not agree an SJE. Curo’s argument that it would not be allowed to have an expert because Mr. Francis had provided a report does not appear to me to have much weight. First, I see no reason why Mr. Francis could not himself give expert evidence, notwithstanding his employment by Curo (see Field v Leeds City Council

(1999) 32 HLR 618

). As to the requirements of independence for an expert, see Brendon International Ltd v Water Plus Ltd

[2024] EWCA Civ 220

(lack of independence goes to weight, albeit that the court may elude evidence that is not impartial or independent). If Curo wish to have a different independent expert then they can ask for one, and the court will consider that application. It seems to me that the real thrust of Curo’s complaint is that it should not have to instruct its own expert because it has Mr. Francis’ report. But it is its own choice how it should deal with the issue, whether to apply for permission to adduce Mr. Francis’ evidence or seek further and independent expert evidence, or to do nothing as regards expert evidence. It should not impinge on the appropriateness of the tenants’ instructing their own experts.

[86]I would add that in neither case was specific objection taken to Mr. Smit or to the surveyors from C7. The objections were more general, to the effect that instructing an expert was premature or unnecessary; or generic, as with the absence of fees information. It was not asserted that these experts were inappropriate.

[87]I consider next the content of the instructions. First, under Protocol 7.7(a) experts’ fees should be agreed at the outset. If an expert is to be appointed as a SJE on the tenant’s initiative, it follows that that information must be given to the landlord so that he can assess whether the fees likely to be charged are appropriate. That was not done in this case.

[88]Further, although the Protocol requires the expert’s report to be somewhat inquisitorial (see para. 7.1(d): ‘The expert should be instructed to report on all adverse housing conditions, which the landlord ought reasonably to know about, or which the expert ought reasonably to report on’), it is it seems to me fundamental that an expert must be asked to advise on the dispute as it in fact subsists between the parties. Where a sole expert is appointed he must be provided with, and be asked to comment upon, any letter of response received from the landlord. That letter of response may narrow the issues, define them or raise further matters to be considered. Not dealing with them in one go is both economically inefficient and likely to cause further unnecessary back-and-forth and delay. In the present case neither Mr. Smit nor Mr. Hedges were supplied with Mr. Francis’ reports, and no good reason was given as to why this was so. In my view this is either a breach of the Protocol, or a failure to comply with the intention guiding the Protocol.

[89]As for the content of the reports in each case, I make no finding on the quality of the reports. Outcome

[90]The application for summary judgment was not pursued with vigour, and rightly so. There is evidence to support the claims made by the Claimants both as to defects and the need for specific performance which are realistic and more than fanciful, and that is sufficient to defeat the claims for summary judgment – EasyAir Ltd v Opal Telecom

[2009] EWHC Ch 339

[91]Turning next to the application to strike out the claim, I do not consider that the Particulars of Claim in these cases disclose no reasonable grounds for bringing the claim. They each assert a conventional disrepair case. Nor do I consider that the Particulars of Claim is an abuse of process or likely to obstruct the just disposal of proceedings. I doubt that in the context of this dispute anything less than bad faith in operating the Protocol would suffice for a finding that there had been an abuse of process, and as I have indicated above I do not find that to have been the case.

[92]I do consider that there has been a failure on the part of the tenants to comply with a rule, practice direction or court order. The pre-action protocols are part of the ‘architecture of litigation’ – Jet 2 Holidays Ltd v Hughes

[2019] EWCA Civ 1858

at [36] – [48]. Although the Protocols are codes of best practice and are to be followed generally but not slavishly, the Practice Direction on Pre-Action Conduct and Protocols states: 1. Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. They are approved by the Master of the Rolls and are annexed to the Civil Procedure Rules (CPR).

[93]To the extent that a party is in breach of a pre-action Protocol, whether of its express terms or of its spirit, and where he does so without good reason, the court can consider that to be a failure to comply with a Practice Direction, and in an appropriately egregious example the court may exercise its strike out power under CPR 3.4(c). The breaches of the Protocol in the present case are the following:(1) The failure to supply fees or charging rates with the proposed experts CVs. The failure to do this will normally prevent a lessor from agreeing to the appointment of the proposed SJE on financial grounds; and may also give the impression that the tenant’s solicitors do not expect the lessor to agree to a SJE. It is undoubtedly unhelpful.

(2) Instructing the expert prematurely. In each case the expert was instructed before the extended time for the lessor’s response had expired. Curo’s complaint that the instruction of the proffered expert was premature, which I have found that it was, appears to be in substance first a complaint that a joint expert amenable to it should have been selected, where the Protocol gives the initiative in that regard to the tenant; and secondly that the tenant should not incur the costs of instructing an expert until the negotiation stage of the Protocol was completed. I do not consider that instructing Mr. Hedges (Bailey and Bennet) had any adverse consequences. He was instructed on 2 June 2023 and the inspection was scheduled for 24 July. The time for Curo’s response had been extended to 6 June, so that gave sufficient time for Curo to respond (as they did on 2 June), for the response to be considered; the letter of dispute to be sent to Curo and for Curo to provide a letter of instructions in good time. As for Mr. Smit (Lancastle) Hugh James had been informed on 9 May 2024 that the inspection was due to take place on 28 May. An agreement was reached that the letter of response would be produced by 21 May. In the circumstances Hugh James plainly had no intention of instructing Mr. Smit as a SJE, even with separate instructions. So although I consider this to be a breach of Protocol, in each case it has had no consequences.

(3) Failure to notify the lessor that the tenant disagrees with the lessor’s assertions and/or proposals, and to what extent such assertions or proposals are disputed. This would have limited the scope of the dispute; and drawn the attention of the nominated expert to the issue in the case. It would have given Curo the opportunity to provide separate instructions to the expert as contemplated by the Protocol, knowing what the dispute was, although I doubt whether they would have taken it (Bailey and Bennet) and find as a fact that they would not have done so in Lancastle. The point is that they did not have that chance.

(4) Failure to provide the expert with the response from the lessor. This is at best a blunder that risks rendering the expert’s evidence useless. It evidences a mindset on the part of the tenant’s advisers that the lessor’s response is irrelevant. I have considered whether it is open to me to find in the absence of explanation that this was the result of a deliberate decision taken not to provide relevant information to the chosen expert(s). That would be close to if not the equivalent of a finding of bad faith on the part of solicitors. On the evidence before me that is not a finding that I make.

[94]These breaches do not in my view justify the striking out of the Particulars of Claim in either case. Striking out is a draconian remedy, and in my view it would be disproportionate in respect of the breaches I have found.

[95]The next question is whether I should pre-emptively prevent the tenants from relying on their expert’s reports by reason of their breach of Protocol. I consider that I would have the power to do so in an appropriate case under CPR 3.1(p). As to the suggestion that I should not do so because the court will in due course consider the granting of permission for experts reports, and such an order would be premature, I disagree. The Court may manage the evidence that can be given under its case management powers, and can do so at any stage of the proceedings. Curo’s case here is that the making of such an order would force the tenants to reset the appointment of an expert, and the parties would then appoint a SJE. That would benefit Curo in that a SJE would presumably cost half the cost of appointing their own SJE, and would penalise the tenants in that they would have to pay the half of the cost of a further expert. It might also lead to an agreement as to the extent of the work required and the means of doing it.

[96]I do not consider that the breaches of Protocol that I have identified justify the barring of Mr. Smit’s and Mr. Hedges’ reports. For the reasons I have set out above, I do not consider that the obtaining of those reports, when obtained, were in breach of the Protocol, although I have been critical of the manner in which those reports were obtained and the instructions given to the experts. Making the sort of debarring order that Curo seeks would in my view be a disproportionate order in these circumstances.

[97]Is there a remedy in respect of the breaches of the Protocol that I have found? Those breaches (not giving a costing for the suggested expert; not responding to the lessor indicating a dispute; instructing the expert prematurely; failure to give the expert the Letter of Response) 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. For the reasons I have set out above I do not consider that it would be proportionate to debar the tenants from relying on this expert evidence. In my view the appropriate order is that:(1) The Claimants be precluded from recovering the costs of instructing and obtaining the evidence of their respective experts, whatever the outcome of this litigation. Further,

(2) Insofar as the Defendant may wish to raise Part 35 questions of the expert in respect of matters contained within the Defendant’s letters of response, say within 28 days, the cost of that process (both as to the question and the response) shall be borne by the Claimant in each case.

[98]That in my view strikes a balance between the consequences of the tenants’ failures to properly instruct their experts, and the fact that they were in my view entitled to instruct them as sole experts when they did. I have also taken into account the tenants’ solicitors failure to provide fees for the experts in deciding the appropriate order to make.

[99]As this judgment has been more discursive than is usual or perhaps useful in the County Court, I shall attempt to summarise the points of principle that I have expressed above:(1) It is open to a tenant to extend the initial period of 20 days for the landlord to respond under the Protocol, by agreement;

(2) If the tenant so agrees, the period within the Protocol for instructing an expert is consequently extended;

(3) A tenant is under an obligation to consider a landlord’s response if given in this initial period prior to instructing an expert under the Protocol;

(4) Exactly what a tenant’s further response should be depends on the facts of the case, but at the least the tenant should notify the landlord that the landlord’s response is not accepted and (if it be the case) that the tenant is proceeding to instruct an expert;

(5) The decision on the part of the tenant to instruct an expert at this stage is contemplated by the Protocol; it is unlikely to be susceptible to challenge unless made in bad faith;

(6) The landlord should be supplied with the charging rate or costs of the proposed expert prior to his being instructed;

(7) If the expert is instructed as a sole expert he should be supplied with the landlord’s letter of response;

(8) A failure to comply with paras (3), (6) and (7) above may well give rise to sanctions preventing the tenant from recovering the costs of his expert from the landlord;

(9) The mere fact that a landlord has obtained an in-house report from a qualified person does not necessarily mean that the landlord will be precluded by the court from obtaining or relying on an expert’s report, whether it is the same in-house report in a form compliant with CPR 35 or some other expert.

[100]I will invite the parties to agree an order consequent upon this judgment, including costs. I will also invite the parties to agree further directions for the claims at this stage. Insofar as there is disagreement I will either decide that disagreement on paper or direct a hearing. Can the parties please respond with their proposed order and directions within 14 days.

[101]As a post script, I would suggest to the Rules Committee that the provisions for allocation that provide for cases where the cost of specific performance is more than £1,000 should be allocated to the fast track appears to me to be out of date. That figure should be revised upwards to allow for inflation and the cautious nature of valuers. I would suggest a figure of £3,000 would be appropriate.

[102]Lastly, can I apologise for the length of time that I have taken to deliver this judgment. HHJ Blohm KC 23 June 2025