Particulars of Claim, witness evidence and information management – Park Square Barristers
Housing disrepair: Particulars of Claim, witness evidence and information management
Three noteworthy points have arisen across the disrepair trials that I have appeared at recently. These points could be said to be going back to basics, in which case they serve as a useful reminder of getting the basics right. As will be seen, the consequences of failing to do so can be catastrophic.
The first point is that the Particulars of Claim need to reflect the entirety of the alleged disrepair. At a recent trial, the Claimant’s letter of claim alleged 16 separate items of disrepair. 11 of these 16 items were said to be actionable disrepair by the Claimant’s expert. However, the Claimant’s representatives made a fatal flaw when they drafted the Particulars of Claim, as only 7 of these 11 items were pleaded. Then, in the witness evidence, the Claimant stated that there were significantly more issues of disrepair; none of which had appeared in the pleadings or expert evidence.
The District Judge hearing the case made clear at the start of the hearing that the Court would be only considering allegations of disrepair that had been pleaded in the Particulars of Claim. This was entirely the correct approach to take. Lawton LJ in Rolled Steel Products (Holdings) Ltd v British Steel & Corp & others [1985] 3 All ER 52 stressed the importance of pleadings as follows:
‘… Pleadings are formal documents which have to be prepared at the beginning of litigation. They are essential for the fair trial of an action and the saving of time at trial. The saving of time keeps down the costs of litigation. A plaintiff is entitled to know what defences he has to meet and a defendant what claims are being made against him.
If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led. Pleadings regulate what questions may be asked of witnesses in cross-examination.
When counsel raises an objection to a question or a line of questioning, as counsel for RSP did on a number of occasions, the trial judge should rule on it at once. He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so. If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended…’
The Claimant had failed to apply to amend their Particulars of Claim and, consequently, they were limited to the 7 items of disrepair alleged in that document. Pleadings must be drafted correctly. It may be worth instructing counsel at this point in case there is any doubt about the quality of the draft. Incurring counsel’s fee at this stage may result in far more damages being awarded later down the line.
The second point relates to the quality of the witness evidence. In a recent disrepair trial, the landlord had acted impeccably. Once they received the letter of claim, they sent their surveyor to the property without delay. The Claimant’s solicitor told the Defendant not to
complete any repairs on the property until the Claimant’s expert had inspected the property; this correspondence appeared in the bundle and assisted the Defendant greatly when it came to determining whether they repaired the property within a reasonable time.
By the time the Claimant’s expert had inspected the property, 7 months had elapsed from the date of the letter of claim. The Defendant repaired what they could the day after the Claimant’s expert inspected the property: a reasonable act on any view. The remaining repairs required the Claimant to be decanted to another property.
The Claimant’s witness evidence was lacking in several respects, in that there:
a) were only generic paragraphs concerning the loss of amenity, using standard phrases such as the Claimant ‘felt embarrassed’ with no explanation as to why;
b) was no mention of the decant and whether it impacted the loss of enjoyment;
c) were details of various items of disrepair that were not pleaded in the Particulars of Claim; and
d) only vague and broad assertions that the Claimant notified the landlord by telephone on various dates, with no evidence to reinforce any of these alleged calls.
In contrast, the evidence provided by the Defendant’s employee was comprehensive, giving the Court a complete chronology, which was reinforced with printouts from internal records. This was far more compelling and persuasive than the bold assertions made by the Claimant.
Ultimately, the Claimant’s claim was dismissed. The Claimant’s solicitors no doubt incurred thousands of pounds in lost profit costs in running this claim to trial. As the volume of housing disrepair cases continues to rise, defendant landlords are increasingly prepared to robustly defend these claims at trial.
Engagement of counsel for advice on liability and quantum following the exchange of witness evidence may reduce the number of claims with poor merits being taken to trial. It may also result in reasonable offers being made by both sides.
The final point relates to information management. As I was repeatedly told at the Royal Military Academy Sandhurst, good communication requires ‘taking complexity and delivering simplicity.’ For me, this principle was expanded upon during my time at the Joint Intelligence Training Group at MOD Chicksands. There, the importance of condensing as much information as possible into a single visible document was a key aspect of delivering a strong intelligence brief. At Chicksands, it was the use of maps and NATO joint military symbols. In disrepair matters, it is the statement provided by the Defendant’s witness and counsel’s skeleton argument.
Being successful in disrepair claims require excellent information management. For every item of disrepair, for which there may be several, the Court needs to consider:
a. is it actionable disrepair?
b. was the disrepair due to the tenant’s conduct?
c. was the landlord put on notice?
d. if so, when and what evidence is there of it?
e. Has the landlord repaired the disrepair?
f. If so, when and what evidence is there of it?
The witness statement relied upon by the Defendant in the preceding paragraphs is a good example of a statement that dealt with each of these items as concisely as possible. The author of the statement dedicated individual sections of their witness statement to each item of disrepair, providing commentary and evidence to the effect that the landlord was not put on notice before receipt of the letter of claim, together with evidence from their systems that the items had been repaired to the required standard on a certain date. In a single document, the Court had all it needed to assess each item of disrepair with minimal ‘jumping around’ the court bundle.
When drafting my skeleton argument, I aim to achieve the same objective in condensing the information about each item of disrepair into specific sections. In some matters, it is appropriate to rely on a simple table to illustrate this information on a single page. This advantage can be achieved by instructing counsel for a trial in good time.
As more firms take on disrepair work, and as more landlords elect to run these matters to trial instead of settling, the importance of getting the basics right is as important as ever.
Prior to being called to the Bar, Jonathan spent four years working within the legal department of a large social landlord: New Charter Housing Trust Group. During this time, he ran a busy caseload consisting of disrepair, possession and injunction matters. The years he spent working for New Charter have allowed him to obtain a greater understanding of the issues experienced by his instructing solicitors.
Jonathan confidently deals with possession matters. He was recently instructed to seek possession of a property for the non-payment of rent. The claim was met with a counterclaim for disrepair. Jonathan persuaded the court to make the possession order, to award the full amount claimed for in rent arrears, and to depart from the fixed costs regime, resulting in several thousands of pounds in costs being awarded.
If you would like to instruct Jonathan, please contact one of his clerks:
Senior Clerk – Andy Reeves on 0113 213 5252
Talia Webster on 0113 202 8609
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