Defendant Conduct in Housing Disrepair Costs: When Can Landlord Delay Justify Additional Costs?

A housing disrepair bill can look high against the damages recovered. Sometimes there is a reason for that, and the reason is the landlord. No response to the Letter of Claim, late or incomplete disclosure, defects disputed and then conceded, repair dates missed, works said to be complete when they are not — each generates work that would not otherwise have been needed.

The rules recognise this. CPR 44.3(5)(d) expressly provides that costs may be proportionate where they bear a reasonable relationship to additional work generated by the conduct of the paying party.

The principle is real. It is also easy to overstate. A landlord being slow does not make every subsequent attendance recoverable. What a claimant has to establish is a chain:

conduct → additional work → reasonable response → reasonable cost.

That causal link is where these arguments are won, and where the weak ones fall apart.

The short answer

Yes, landlord conduct can justify additional costs — and Part 44 uses conduct at three distinct stages, which is worth separating because they answer different questions.

Housing disrepair then has an advantage over most costs disputes: a protocol with concrete deadlines, so conduct can be measured against something objective rather than asserted.

Conduct and the costs order: CPR 44.2

CPR 44.2 gives the court its discretion over whether costs are payable, how much, and when. In deciding what order to make, the court considers all the circumstances including the conduct of the parties — conduct before proceedings, compliance with any relevant pre-action protocol, whether it was reasonable to raise or contest an issue, and the manner in which a party pursued or defended its case.

This is about the shape of the order — whether the ordinary consequence should be modified, or a particular issue or period treated differently. It is a different question from whether £250 of correspondence survives assessment, and conflating the two weakens both.

Conduct and proportionality: CPR 44.3(5)(d)

This is the provision that does the commercial work in housing disrepair.

Costs are proportionate if they bear a reasonable relationship to:

• the sums in issue;
• the value of any non-monetary relief;
• the complexity of the litigation;
• additional work generated by the conduct of the paying party;
• any wider factors; and
• any additional work or expense caused by the vulnerability of a party or witness.

So the rule itself rejects the arithmetic that paying parties lead with:

Damages £2,000. Costs £9,000. Therefore disproportionate.

The subsection that follows conduct is worth reading with it: additional work caused by the vulnerability of a party or witness sits in the same list, and on a file where the landlord’s defaults each took longer to deal with because of the client’s circumstances, both factors may be engaged — though the same attendance is still only one attendance.

That is not a CPR 44.3 analysis. If part of the £9,000 exists because the paying party generated the work, the rule says so expressly. It does not guarantee recovery — but a paying party cannot assess proportionality while leaving its own conduct out of the calculation.

Conduct and the amount: CPR 44.4

CPR 44.4 requires the court to have regard to all the circumstances when deciding whether costs were reasonably and proportionately incurred and are reasonable and proportionate in amount. The listed factors include the conduct of all parties, and in particular efforts made before and during proceedings to resolve the dispute, alongside value, importance, complexity, skill and responsibility, time spent and the circumstances in which the work was done.

The practical significance is that conduct is not only a broad proportionality idea. It can also explain why a particular item of work was reasonably incurred at all.

The Protocol gives you objective benchmarks

Most conduct arguments in other fields rest on impression. Housing disrepair has the Pre-Action Protocol for Housing Conditions Claims (England), which sets out what reasonable landlord engagement actually looks like.

The 20-working-day response

Paragraph 6.2 provides that the landlord should normally reply to the Letter of Claim within 20 working days of receipt. Paragraph 6.3 sets out what that response has to address:

• whether liability is admitted, and for which defects;
• the reasons for disputing liability, if it is disputed;
• any points on lack of notice or difficulties over access;
• a full schedule of intended works with dates;
• any offer of compensation; and
• any offer in respect of costs.

Paragraph 6.4 then provides that failure to respond within 20 working days of receipt, or at all, is a breach of the Protocol and the tenant is free to issue proceedings.

That converts a vague complaint into a chronology:

Letter of Claim served on [date]. Protocol response due [date]. No response. Further correspondence on [dates]. Proceedings required.

Specific, dated, and tied to the procedural framework — rather than “the Defendant was slow”.

Disclosure

Paragraph 5.3 covers the documents the landlord should provide: the tenancy agreement, the tenancy file, documents relating to notice of the defects, inspection reports and relevant computerised records.

Where those arrive late, incomplete, or only after repeated requests, the claimant may have been forced into work that timely compliance would have avoided — chasing records, rebuilding the notice chronology, taking further instructions, updating the expert, or preparing to issue without information that should have been supplied.

Access — which cuts both ways

Paragraph 7.6 requires tenants to allow the landlord reasonable access for inspection and the carrying out of works in accordance with the tenancy agreement.

So before running a failed-appointments argument, check who arranged it, whether notice was given, whether access was actually available, who failed to attend, and what was recorded at the time. A conduct narrative that ignores adverse entries on the file does not survive first contact with the paying party.

Costs consequences

Paragraph 1.3 records that the court can order parties who have unreasonably failed to comply with the Protocol to pay costs or be subject to other sanctions. That makes a breach important — it does not make everything after it recoverable.

Where conduct is more likely to support additional costs

None of these means automatic recovery. Each one raises the same next question: what work did it actually cause?

What does not become recoverable

This is where a good conduct argument gets damaged — by attaching every marginal attendance to it.

• Repeated unnecessary chasers. If one sensible reminder would have done, six near-identical emails may still be reduced.
• Work required anyway. If the expert report was always necessary, it is not a cost caused by conduct merely because the landlord also delayed. The argument concerns additional expert work.
• Claimant-side delay. A chronology showing inactivity on both sides does not support a one-sided narrative.
• Duplication. Two fee earners dealing with the same default is not reasonable because the landlord was at fault.
• Excessive seniority. Conduct may justify the work without justifying who did it — the grade question runs separately, as our guide to defending Grade A rates in housing disrepair sets out.
• Administrative work presented as legal complexity. Additional work still has to be categorised honestly.

The five-stage test

Run every conduct argument through this before relying on it:

• What should have happened? The normal procedural position — the Protocol response, the disclosure, the works.
• What actually happened? The default, with dates.
• What additional work followed? Specific items, not a general assertion.
• Was that response reasonable? Would a competent solicitor have done it?
• Is the amount reasonable? Conduct can justify the work without justifying every minute or every rate.

That is a materially stronger submission than “costs were increased by the Defendant’s conduct”, which asserts the conclusion and proves nothing.

Three worked situations

Late Protocol response

A compliant Letter of Claim goes out. Nothing comes back within 20 working days. The solicitor sends a substantive reminder, speaks to the client because the defects continue, confirms the repair position, progresses the expert and prepares to issue.

If those steps were reasonably necessary, the failure to engage is part of the explanation for the costs. If instead an identical chaser goes out every second day for a month, the breach does not make each one recoverable. Conduct explains why work arose; reasonableness still governs the response.

Late disclosure where notice is disputed

The landlord holds the repair reports, inspection records, contractor attendances, complaints and repair orders. They are requested and not supplied. The claimant takes fuller instructions, reconstructs the notice chronology from partial material, corresponds further, and prepares the case without records that should have been disclosed — which then arrive late and need reviewing.

That work was not invented. It exists because information was withheld when it was due.

Works said to be complete

The landlord reports the repairs done. The tenant reports damp remaining, mould returning, water still entering, or only part of the schedule addressed. Further work may reasonably include updated instructions, reviewing new photographs, corresponding on outstanding items, expert input and a settlement review.

The bill has to show what remained unresolved. Compare:

“Client update regarding repairs.”

“Review photographs showing continuing bedroom mould following Defendant’s stated completion of works; advise on outstanding items in expert schedule and further response.”

Same six minutes. Only one of them can be assessed.

Answering the proportionality challenge

The standard objection:

“The costs claimed are wholly disproportionate to damages of £2,000. This was a straightforward disrepair claim that should have resolved at minimal cost.”

The weak Reply asserts that the costs are reasonable having regard to conduct. The strong Reply supplies the chronology:

The proportionality challenge does not address the additional work generated by the Defendant’s conduct, which is an express factor under CPR 44.3(5)(d). The Letter of Claim was served on [date]. The Protocol response fell due on [date] and was not provided until [date]. Repair records requested under paragraph 5.3 remained outstanding, necessitating further correspondence and review. The Defendant proposed works on [date] but [event]. The additional work identified in the bill arose from those developments rather than from the damages claim in isolation.

Then answer the items actually challenged. The point is to let the costs judge connect event → work → cost. This is one of the recurring battlegrounds covered in our guide to the most common reductions in housing disrepair Points of Dispute.

Conduct is not a general-purpose answer

The risk with a strong provision is using it everywhere. Defendant conduct is relevant to proportionality, to why additional work arose, to particular stages of the chronology and sometimes to the order itself.

It is not an answer to an incorrectly graded fee earner, an unsupported disbursement, an excessive surveyor fee, duplicated time, an arithmetic error, incorrect VAT, or work outside the costs entitlement.

Used as boilerplate it stops being persuasive on the occasions when it is right.

Conduct does not cure poor costs

Bad behaviour by the paying party does not deliver any hourly rate the receiving party fancies, unlimited correspondence, duplicated work, excessive review time or unreasonable expert fees.

The strongest conduct argument separates costs generated by the paying party from costs generated by the claimant firm’s own inefficiency. Using the first to shelter the second is how credibility is lost on the items that deserved to be paid — and how the wider proportionality position, set out in our note on whether HDR claims are still assessed on the standard basis, gets weaker rather than stronger.

Conduct after settlement is a different question

This article concerns conduct during the underlying claim. Where the claim has settled and the landlord then breaches the agreed repair terms — works not completed, deadlines missed, defects remaining, enforcement needed — the existence of further work does not automatically bring it within the original costs entitlement.

The settlement wording, the order and the procedural route all have to be checked separately, which is dealt with in our guide to recovering further costs after a breached Housing Disrepair settlement.

What the file needs to show

A conduct argument is only as good as the chronology behind it. Keep:

• the original complaints and the Letter of Claim, with proof of service;
• the Protocol response and its date;
• disclosure requests and what was received, when;
• repair logs, landlord records and contractor appointments, including cancellations;
• inspection correspondence, the expert report and any expert questions;
• photographs and repair schedules;
• offers, open settlement correspondence and any orders; and
• attendance notes recording why further work became necessary.

If the conduct argument first appears when Points of Dispute arrive, it is much harder to establish. The material has to be gathered while the claim is live.

A four-question audit before the bill goes out

• What exactly did the Defendant do or fail to do? Dates and events, not labels.
• What additional work did it generate? Identified items.
• Would that work have been necessary anyway? If yes, do not overstate causation.
• Was the response proportionate? A default by the Defendant does not excuse excessive handling.

When to concede

Sometimes the conduct point should go. For example where:

• the response was late but generated almost no extra work;
• the missing disclosure turned out to be irrelevant;
• the claimant was responsible for the failed access;
• the chasers were repetitive rather than necessary;
• the work would have been required in any event; or
• the file does not actually support the allegation.

Conceding a weak conduct point buys credibility for the strong ones. Defending all of them costs more than it recovers.

Key takeaway

Landlord delay does not automatically justify additional costs.

But the paying party cannot generate additional reasonable work and then ask the court to assess proportionality as though that work never happened.

CPR 44.3(5)(d) says so expressly. The strongest position shows what should have happened, what actually happened, what additional work resulted, why the response was reasonable and what it reasonably cost. The objective is not to blame the landlord for the size of the bill — it is to explain the bill accurately.

We prepare and negotiate Housing Disrepair costs for claimant solicitor firms, including the conduct and proportionality arguments that decide these bills. Has the Defendant challenged costs its own conduct helped generate? Send us the bill, the Points of Dispute and the chronology and we will review the position on a fixed fee agreed before instruction.

Sources: CPR Part 44, in particular rules 44.2, 44.3(5) and 44.4; and the Pre-Action Protocol for Housing Conditions Claims (England), in particular paragraph 1.3 on sanctions for unreasonable non-compliance, paragraph 5.3 on disclosure, paragraphs 6.2 to 6.4 on the landlord’s response and the consequences of failing to give one, and paragraph 7.6 on access.