Housing disrepair claims not suitable for virtual courts
Posted on 2nd June 2016
You may or may not have heard about the new Online Court proposals, intended to bring the UK justice system up to date and make use of the wonders that the internet has to offer. The proposal is to have an online dispute resolution facility available within the next two years. It has been suggested that this will initially cover claims of up to £10,000 with an aim to work towards handling claims of up to £25,000. The process was initially proposed as being “lawyer-free” although more recently it has been suggested that there will be “a very limited element of fixed costs”. It will involve online ‘facilitators’ who assist parties with negotiations to try to reach an agreement, and if that fails, a Judge will rule on the case. The parties would not appear in person to give evidence, nor would this take place in a court room. It would be more of a virtual courtroom with the potential option of telephone hearings.
This is of course just a summary of the proposal but in any event it seems that much of the detail remains unresolved and clearly needs some careful thought.
As well as modernising the UK justice system, the purpose of this is apparently to save costs and speed up the court process as well as increasing access to justice. However, what about those who do not or cannot use the internet? What about vulnerable clients or those who do not speak English? Those who have learning difficulties or struggle to read and write? It is certainly not increasing their access to justice.
At Hodge Jones & Allen we have a large housing team that undertakes a variety of work, but a large portion of that work is claims for housing disrepair. Disrepair covers a wide range of issues from a leaking roof to a faulty extractor fan. We have been considering whether disrepair claims could be suitable for the proposed Online Court process and have some real concerns about the effect this would have on claimants.
Running a disrepair claim requires a specialist housing lawyer with the right expertise. It is not a simple claim for damages where someone owes you a defined sum of money. It often involves not only an order for damages but also an order to compel the landlord to carry out repairs. Furthermore, the process of quantifying damages is not straight forward and requires careful consideration of case law. How can tenants be expected to quantify their own claim? This would put them at a significant disadvantage as they will be lacking the necessary skills and resources. They may even have unrealistic expectations of the level of damages, resulting in them paying an inflated court fee or the case ending up before a judge when it should have settled. Equally, they may end up settling for something which is totally inadequate and unjust.
It is also concerning that social housing tenants will be up against a landlord with their own legal team and expert surveyors on hand, which carries the obvious risk of a significant inequality of arms.
This blog only touches the surface of the serious concerns that we have about disrepair claims moving to the Online Court system. Hodge Jones & Allen recently provided a substantive response to the interim report from Lord Justice Briggs in which he set out the proposals for the Online Court system. We identified a wide range of practical and fundamental problems that would arise if disrepair claims were dealt with using the Online Court process…watch this space for the final outcome!