If you run a busy housing disrepair (HDR) department, a huge amount of work is done before you ever issue. Letters of claim, experts, schedule of works, negotiation – and then the landlord finally caves and does the repairs or agrees a deal.
The question that keeps coming up:
“Can we actually recover our pre-action costs, or have we just done all that work for free?”
This guide is written for solicitors and costs teams acting for tenants. It pulls together the Pre-Action Protocol for Housing Conditions Claims (England), key case law and the current CPR position, and then turns it into something usable on real files. (GOV.UK Justice)
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In broad terms, you have a good argument for recovering reasonable pre-action costs where:
1. There was a justifiable disrepair claim under the Housing Conditions Protocol; (GOV.UK Justice)
2. You followed the Protocol in substance (proper letter of claim, giving time for a response, access, expert where needed, etc.);
3. The landlord’s breach prompted the work – they didn’t simply fix everything at first complaint;
4. The matter then:
o Settles pre-issue on terms which “justify bringing the claim” (repairs, damages and/or costs), or
o Settles after issue but the real work was done pre-issue (e.g. pre-allocation or shortly after).
Where those ingredients are present, the court can and does allow pre-action costs, subject to reasonableness and proportionality under CPR 44.3. (LEXLAW Solicitors & Barristers)
The difficulty is how you get from “entitled in theory” to “cash in the client account” in practice. That’s where structure, wording and (frankly) decent costs support really matter.
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The Pre-Action Protocol for Housing Conditions Claims (England) applies to tenant claims about disrepair and fitness. It sets out the expected pre-issue steps – letter of claim, disclosure, inspection, expert evidence and negotiation. (GOV.UK Justice)
Crucially, paragraph 11 (Costs) provides, in essence, that:
• If a tenant pursues a justifiable claim under the Protocol,
• And the matter is settled without litigation “on terms which justify bringing the claim”,
• Then the tenant should ordinarily recover their reasonable costs of doing so. (Local Government Lawyer)
That is the starting point for most pre-action HDR costs arguments.
In Birmingham City Council v Lee, the Court of Appeal confirmed that a tenant with a justifiable disrepair claim brought in accordance with the Protocol should be able to recover their costs – even where the landlord promptly undertakes the repairs rather than defending proceedings. (New Law Journal)
The message from Lee is still powerful for claimant firms:
• You are not penalised just because the landlord finally does what they should have done once solicitors and surveyors get involved.
• Provided the claim was justified and properly advanced under the Protocol, reasonable pre-action costs are recoverable.
In Jalili v Bury Council, the court considered how much of the tenant’s legal costs were recoverable where a disrepair claim against a council landlord settled pre-issue. The decision illustrates how judges actually approach reasonableness and proportionality for HDR pre-action costs in the real world: (Judge & Priestley)
• They look closely at the volume and quality of work done (letters, evidence, negotiations);
• They assess whether it was necessary to achieve the outcome (repairs/compensation);
• And they prune what feels excessive or duplicated, particularly routine admin.
It is a reminder that the answer is rarely “all or nothing”. You are usually arguing about how much pre-action work is recoverable, not whether anything is.
Where a claim settles pre-issue, but the parties cannot agree the tenant’s costs, the usual route is costs-only proceedings under CPR 46.14, using a Part 8 claim. (GOV.UK Justice)
• Liability for costs (in principle) must have been agreed.
• The court’s job is to assess the quantum of those costs.
• For fixed costs disputes (including certain cases post-October 2024), Part 45 and its new provisions for costs determinations interact with CPR 46.14. (GOV.UK Justice)
For HDR departments, that means:
If you settle pre-issue on terms like “Defendant to pay the Claimant’s reasonable pre-action costs to be assessed if not agreed,” you’re almost certainly looking at a CPR 46.14 route if the paying party lowballs.
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Let’s look at the typical patterns you see day-to-day.
• You send a proper Protocol letter of claim.
• There’s an expert surveyor, defect schedule, maybe a Scott Schedule.
• Landlord drags a bit, then completes works and offers a modest damages payment.
• You settle pre-issue, either with or without a formal compromise agreement.
Position on costs:
• This is exactly the situation contemplated by paragraph 11 of the Protocol and by Birmingham v Lee: a justifiable Protocol claim settled without proceedings on terms that justify bringing it. (GOV.UK Justice)
• You should seek recovery of your reasonable pre-action costs, ideally with an express costs clause in the settlement.
• If the landlord agrees to pay “costs to be assessed if not agreed”, you are set up for CPR 46.14 if negotiations stall.
Sometimes defendants want the best of both worlds:
“We’ll do the works and pay a bit of compensation, but you’re on your own for costs.”
Here, you need to consider:
• Whether it is commercially viable to hold out for a costs provision, or
• Whether, in an appropriate case, you issue limited proceedings (e.g. costs-only or claim for breach) to secure a proper costs outcome.
The risk for defendants is that ignoring the Protocol or refusing to engage on costs can backfire, leading to adverse costs orders if proceedings become necessary. (Mercers Solicitors)
Even post-issue, pre-action work is not “wasted”.
• The court on detailed assessment will look at the whole file, including pre-issue work.
• In HDR claims, track allocation (and therefore cost rules) is affected by the cost of the works and the value of other relief. Where repairs or other remedies exceed certain thresholds, claims are commonly allocated to the fast track, unlocking standard-basis costs. (Cook Legal)
Pre-action work that was genuinely needed to bring the claim to the point of settlement (surveyors, evidence, negotiations) remains potentially recoverable, subject to proportionality.
The flip-side is where your own side hasn’t followed the Protocol properly, for example:
• Inadequate letter of claim;
• No proper schedule / expert where clearly needed;
• Issuing prematurely without giving the landlord a fair chance to respond.
The court can, and increasingly does, use costs sanctions for Protocol breaches, including disallowing some or all pre-action costs or making adverse orders on assessment. (Mercers Solicitors)
That is why front-end discipline on HDR files really matters.
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In detailed assessments and negotiations, three questions usually decide what sticks:
1. Was the work necessary?
o Time drafting a proper letter of claim, reviewing disclosure, instructing surveyors and advising on settlement strategy is usually seen as necessary.
o Repetitive “file reviews” and internal admin are the first to be cut.
2. Was the time spent reasonable?
o 6 hours on a straightforward single-bed flat with limited defects and one round of correspondence is unlikely to survive intact.
o Complex multi-defect, long-running cases with vulnerability, expert evidence and prolonged negotiations justify a higher level of pre-action work.
3. Are the total costs proportionate to the claim and issues?
o Proportionality under CPR 44.3 is the big filter. High costs on very modest damages will be attacked, but where there are multiple serious hazards, health impact, repeat complaints and expert-heavy evidence, courts are more sympathetic. (LEXLAW Solicitors & Barristers)
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From a costs lawyer’s perspective, there are a few simple habits that make a huge difference later:
• Avoid generic “file review” entries. Note what changed – e.g. “reviewed expert report, identified additional hazards, updated advice to client”.
• Show the link between work and outcome – “considered landlord’s offer and advised on counter-proposal focusing on works to bathroom and kitchen”.
• Keep attendance notes of client calls where you discuss strategy, offers and repairs. These often defend chunks of time.
A strong Protocol letter:
• Clearly sets out the history of complaints;
• Identifies all hazards and impact on the tenant/family;
• Flags any vulnerability or special features;
• Requests inspection, disclosure and an early, sensible response.
This becomes Exhibit A when you argue that pre-action work was necessary and worthwhile, even if the landlord later tries to minimise its significance.
Surveyor and other expert fees are often attacked as excessive or unnecessary. The best protection is:
• Choosing appropriately qualified experts with HDR experience;
• Giving clear instructions and avoiding duplicate inspections where possible;
• Ensuring reports are focused on the pleaded issues.
On assessment, judges are much more comfortable allowing expert costs where the report obviously moved the case forwards.
Whenever you settle pre-issue, try to ensure the agreement says something along the lines of:
“The Defendant will pay the Claimant’s reasonable pre-action costs, to be assessed if not agreed.”
Without that, you risk an argument later about whether there is any costs entitlement at all, rather than simply the amount.
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You should be thinking about costs-only proceedings where:
• The underlying HDR dispute has settled pre-issue;
• The paying party accepts that some costs are due but won’t agree a sensible figure;
• There is a clear written agreement or confirmation that they will pay your costs, leaving only quantum in dispute. (GOV.UK Justice)
Key points for HDR solicitors:
• The client must understand the risk/reward of issuing a separate costs claim.
• Your bill and narrative need to be DA-ready – coherent, sensibly pitched, proportionate.
• In the post-October 2024 landscape, some HDR disputes may fall into the new fixed costs determination process, which has its own rules and caps.
This is where it usually makes sense to get a specialist costs outfit involved rather than trying to DIY it.
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At DMD Costs, we live in this space every day – particularly Housing Disrepair and niche areas like MOD NIHL. We:
• Draft Pre-Action and post-issue Bills of Costs for HDR claims;
• Negotiate with defendants and their costs firms to maximise recovery of pre-action and post-issue costs;
• Run CPR 46.14 costs-only proceedings where needed;
• Help you tighten your internal processes so future files are more profitable.
Behind the scenes, we also use AI-driven file analysis to:
• Spot gaps in Protocol compliance;
• Flag weak time entries before the defendant does;
• Benchmark your pre-action costs against similar cases so you know when an offer is genuinely poor.
If you’d like us to look at a live HDR file and tell you, frankly, what pre-action costs you’re likely to recover, you can send it securely and we’ll review it on a trial-to-settlement basis.
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No – but if the claim was justifiable, properly run under the Protocol and settled on terms that justify bringing it (repairs and/or damages), you have a strong starting point. The real argument tends to be about how much, not whether anything is payable. (New Law Journal)
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Yes. That is exactly what paragraph 11 of the Protocol contemplates, and why CPR 46.14 costs-only proceedings exist. The key is having a clear agreement that the defendant will pay your costs, even if the amount is disputed. (GOV.UK Justice)
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The court can reduce or disallow your costs, including pre-action costs, or make other adverse costs orders. Courts are increasingly willing to sanction both tenants and landlords for serious Protocol breaches, especially where it has inflated costs or delayed resolution. (Mercers Solicitors)
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Often, yes – provided they were reasonably incurred and proportionate to the case. Reports that are clearly relevant, focused and help resolve the dispute are more likely to be allowed on assessment than generic, boilerplate inspections. (Judge & Priestley)
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As soon as:
• You have a pre-issue settlement where costs are in dispute;
• The defendant has served aggressive Points of Dispute targeting your pre-action work; or
• You are considering CPR 46.14 or a detailed assessment but are unsure about risk and likely recovery.
Getting the right advice early usually pays for itself in better outcomes and fewer wasted battles.