Clare Cullen acted for Trivallis Limited, one of the largest housing associations in Wales, in 2 housing disrepair cases concerning the use of experts. In a judgment handed down on 3 July, the County Court in Cardiff refused the claimant tenants permission to rely on their proposed experts.
In both cases:
- a letter of claim had been sent to the housing association with details of a proposed expert
- Trivallis Limited had queried whether it was necessary to instruct an expert, objected to the proposed expert, proposed an alternative expert and provided a schedule of repairs.
In one of the cases, the claimant tenant’s proposed expert was instructed unilaterally without the claimant engaging further with the defendant.
In the other case, the tenant instructed a different expert unilaterally without providing their details to the defendant nor engaging further with the defendant.
The housing association argued that the claimant should be refused permission to rely on their experts due to alleged breaches of the pre-action protocol.
HHJ James emphasised the importance of following the pre-action protocol applicable for housing disrepair cases in Wales. (The protocol is very similar to that in England - only differing on the numbered sub-paragraphs as to its aims).
- Claimant solicitors should not unilaterally instruct an expert when a defendant’s objections to that expert remain unanswered.
- The pre-action protocol envisages that where expert evidence is necessary it is to be by a single joint expert and the parties should try to cooperate in appointing a single joint expert.
- Where a defendant in a disrepair case has responded to the letter of claim by providing a schedule of works from a suitably qualified employee, the claimant must state whether it accepts or disputes the schedule of works before appointing an expert and explain why an expert report is required.
In both cases, the court refused permission for the claimants to rely upon the expert reports obtained at the pre-action stage because there had been breaches of the pre-action protocol. The judge directed a joint instruction of the defendant housing association’s proposed expert.