Kerry Underwood

HOUSING CLAIMS AND THE NEW FIXED COSTS REGIME

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You can now book onto my Fixed Costs Autumn Tour – here

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

Summary

All housing claims up to £100,000.00, therefore effectively all claims, are to be covered by Fixed Recoverable Costs.

Recommendations

There is no specific recommendation in relation to housing claims.

Commentary in report

At paragraph 5.18, page 88, of the report Lord Justice Jackson states:

 

“5.18 Housing claims.  The principle categories of housing claims are:

  1. Defending claims for possession, including mortgage repossession.

 

  1. Claims for unlawful eviction.

 

  1. Homelessness applications, including County Court appeals.

 

  1. Claims for breach of repairing obligations.

 

  1. Judicial review in respect of housing law issues.

The HLPA say that they are particularly concerned about housing disrepair claims because these seldom qualify for legal aid. I understand from one of my assessors, who has experience of managing disrepair cases in the fast track, that the FRC regime proposed above would be satisfactory for most disrepair claims. Most such claims would fit into either Band 3 or Band 4. Nevertheless, in certain of the cases cited by the HLPA, the recovered costs are higher than the proposed FRC (even allowing for the fact that the HLPA figures include VAT and disbursements). Possibly these are cases which ought not to have been in the fast track at all or possibly they are exceptional cases where the escape clause might be invoked (as to which see below). It is difficult to say without having the details of individual cases.”

Appendix 5 to Lord Justice Jackson’s report is:

Detailed Information on 83 Housing Disrepair Cases, collected from Solicitor members by the Housing Law Practitioners Association.

 

Fast Track

In the Fast Track, which for housing disrepair claims, but not other housing claims, is £1,000.01 to £25,000.00, claims will generally go into Complexity Band 3 or 4.

The starting point is Complexity Band 3 but with “particularly complex” cases going into Complexity Band 4.

Complexity

Few housing claims are above the general Fast Track financial limit of £25,000.00.

Any particularly complex claims I likely to be unsuitable for the Intermediate Track, which is for claims of no more than “modest complexity” and is primarily for claims suitable for the Fast Track, but for the value of the claim.

Any housing claim allocated to the Multi-Track will not be subject to Fixed Recoverable Costs.

Lord Justice Jackson states that some such claims may remain in the Fast Track, but be subject to the CPR 45.29J escape clause.

This allows parties to escape the Fast Track FRC scheme in “exceptional circumstances.”

LJ Jackson states:

“That provision will continue to apply, but its reach will be extended following the extension of FRC across the whole of the fast track. Use of this provision will continue to be rare, because any case of exceptional complexity is unlikely to be in the fast track.” (Paragraph 5.20, Page 89)

CPR 26.8 deals with the matters to be considered when allocating to the Fast Track and CPR 26.10 allows the court to reallocate a case which should not be in the Fast Track.

This is a double-edged sword as there is no system of Qualified One-Way Costs Shifting in housing claims, and so a Claimant seeking allocation to a non-Fixed Costs Track, or seeking to avoid FRC, exposes itself to a greater costs risk.

One of the unanswered questions concerns the interplay with the after the event (ATE) insurance.

Insurers love certainty, and so FRC, and therefore fixed maximum exposure to adverse costs, should make ATE insurance cheaper and easier to get.

However ATE insurers are almost certain to insist on a much higher premium if the matter is allocated to the Multi-Track, or any non-FRC scheme.

At present effectively, but not technically, only a Claimant can seek to invoke CPR 45.29J as it only applies to personal injury claims and Qualified One-Way Costs Shifting applies to all such claims.

As FRC spread to all types of civil work, any successful party, Claimant or Defendant, will be able to apply under CPR 45.29J.

Legal aid is generally not available for housing claims.

There is a powerful argument for spreading Qualified One-Way Costs Shifting regime to all housing claims.

The relevant part of the Civil Procedure Rules is CPR 45.29J to 45.29L which reads:

Claims for an amount of costs exceeding fixed recoverable costs

45.29J

(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.

(2) If the court considers such a claim to be appropriate, it may—

(a) summarily assess the costs; or

(b) make an order for the costs to be subject to detailed assessment.

(3) If the court does not consider the claim to be appropriate, it will make an order—

(a) if the claim is made by the claimant, for the fixed recoverable costs; or

(b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,

and any permitted disbursements only.

Failure to achieve costs greater than fixed recoverable costs

45.29K

(1) This rule applies where—

(a) costs are assessed in accordance with rule 45.29J(2); and

(b) the court assesses the costs (excluding any VAT) as being an amount which is in a sum less than 20% greater than the amount of the fixed recoverable costs.

 

(2) The court will make an order for the party who made the claim to be paid the lesser of—

(a) the fixed recoverable costs; and

(b) the assessed costs.

Costs of the costs-only proceedings or the detailed assessment

45.29L

(1) Where—

(a) the court makes an order for costs in accordance with rule 45.29J(3); or

(b) rule 45.29K applies,

the court may—

(i) decide not to award the party making the claim the costs of the costs only proceedings or detailed assessment; and

(ii) make orders in relation to costs that may include an order that the party making the claim pay the costs of the party defending those proceedings or that assessment.

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Written by kerryunderwood

September 19, 2017 at 8:09 am

Posted in Uncategorized

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