Housing Claims
The original call for reform of housing law came from Lord Woolf in 1996 based on the fact that the law was regarded as too complex, giving rise to increased litigation costs as a result. Since then the call has been repeated by the Law Commission in 2003, 2006 and 2008.
The proposals for the housing market are:
- a limited number of different types of tenancy agreements;
- a reduction in the number of statutes and statutory regimes applying to housing law;
- a possible compulsory system of self-regulation;
- an extension of fixed costs to all possession proceedings in the fast track, including housing disrepair cases - this means that parties properly conducting themselves who incurred costs above the fixed fee rates would have to shoulder the additional cost. This must be tempered with the reality that in a large number of cases the chances of the landlord ever getting their money are slim and re-possession is usually the main aim of the litigation;
- the recoverable issue fee on cases that could be issued using PCOL (Possession claims Online) be limited to the PCOL rates - issue manually and the landlord pays the difference;
- changes to the rent arrears protocol, requiring social landlords to seek information on the tenant's personal circumstances before deciding whether to issue any possession claim - this could also be applied by private landlords (who may want the information to assess the tenant's ability to pay) but there is unlikely to be any obligation to provide the information requested;
- possible one-way costs shifting, so that the costs a successful party can recover are assessed not only on the basis of the amount reasonably incurred but also on the basis of what is reasonable for the paying party to pay given their financial circumstances - obviously this is likely to provide greater protection to a tenant than a landlord, however again it has to be tempered by the harsh reality that if a tenant does not have any money a landlord is always going to have difficulties getting paid.
The Government stated in May 2009, in "The Private Sector: Professionalism and Quality" that it did not feel that the time was right for a fundamental change in the law on renting homes. Whether the current report will kick-start the process is debatable.
It was accepted in Lord Justice Jackson's preliminary report that it was rare for a successful party to seek assessment of the reasonableness of any amount the losing side should pay. Applying for an assessment of the amount it is reasonable for the tenant to pay incurs further costs on top of the costs already incurred against a litigant who is likely to have limited means to pay in any event.
When the court is to make such an assessment it can do so immediately. However, the time currently available in possession hearings would not allow for this and if the tenant fails to attend the Court will not be able to do it anyway. An extension to the time allotted to possession hearings would create a backlog and cause delay in cases being dealt with by the Courts. A further hearing is therefore almost inevitable. It was also recognised by Lord Justice Jackson that this provided close to complete immunity to costs for losing parties.
