A housing disrepair claim settles before proceedings are issued. The works are done, the tenant has a cheque, and the landlord’s solicitor takes the position that because nothing was ever issued, there is no order for costs and nothing to pay.
That position is wrong, and the answer is not buried in case law. It is in the protocol itself, in a single sentence.
What the protocol actually promises
The Pre-Action Protocol for Housing Conditions Claims (England) deals with costs expressly. Paragraph 11 provides:
“If the tenant’s claim is settled without litigation on terms which justify bringing it, the landlord will pay the tenant’s reasonable costs.”
Two things follow, and they pull in opposite directions. The first is that pre-action costs in a disrepair claim are not a favour or a matter of goodwill — the protocol says the landlord will pay them. The second is that the promise is conditional, and the condition is doing real work.
The protocol applies to claims about the condition of residential premises in England (paragraph 3.1), including claims under sections 9A and 11 of the Landlord and Tenant Act 1985, section 4 of the Defective Premises Act 1972, and nuisance and negligence at common law (paragraph 3.2). It does not cover section 82 Environmental Protection Act 1990 proceedings, which are a magistrates’ court matter.
“Terms which justify bringing it” is where the argument is
The protocol does not define the phrase. In practice it is the whole battleground, because it is the one part of paragraph 11 a paying party can attack without disputing the rule.
| Settlement | How it reads on the costs question |
|---|---|
| Works carried out plus damages | Strongest position. The tenant obtained the remedy the claim was brought to obtain. |
| Works carried out, no damages | Still supports recovery. The disrepair was the complaint and it was remedied. |
| Damages only, works already done before the Letter of Claim | Weaker, and the file has to show what the claim actually achieved. |
| Small payment, expressly without admission, to close the file | The paying party’s best argument that the claim did not justify the costs run up. |
The point that gets missed is that this is decided on the terms, not on the amount. A modest settlement figure is not by itself an answer to paragraph 11, and it is not an answer to the track question either — see Smith v Wigan Borough Council, where a settlement around the small claims figure did not automatically carry small claims costs consequences.
How you actually get paid when nothing was issued
Paragraph 11 creates the entitlement. It does not quantify it, and there is no order to assess because there are no proceedings. Where the landlord accepts liability for costs but disputes the figure, the route is costs-only proceedings under CPR 46.14 — a Part 8 claim brought for costs alone, on the basis that the parties have agreed all substantive issues including who pays costs, but not the amount.
The sequencing matters and it is the most common thing to get wrong: CPR 46.14 requires an agreement that covers liability for costs. A settlement that resolves the disrepair and says nothing about costs does not open that door, and the point to fix it is before the agreement is concluded rather than afterwards. We set the mechanics out separately in costs-only proceedings under CPR 46.14.
The 20-working-day clock, and what landlord delay is worth
The protocol runs to a timetable, and the timetable is where recoverable work is generated.
| Stage | Protocol | Period |
|---|---|---|
| Landlord’s reply to the Letter of Claim | 6.2 | 20 working days from receipt |
| Landlord’s objection to the proposed expert | 7.2 | 20 working days, else instructed jointly |
| Inspection of the property | 7.4 | 20 working days from the landlord’s response |
| Expert’s report | 7.4 | 10 working days from inspection |
Under paragraph 6.4, a landlord who does not reply within the 20 working days is in breach and the tenant may issue. Under paragraph 4.1, the court will take the extent of compliance into account when making orders about who pays costs, and paragraph 1.3 records the power to order a party who has unreasonably failed to comply to pay costs or be subject to other sanctions.
None of that converts chasing letters into recoverable work by itself. What makes the difference is whether the file shows what the delay caused — a second inspection because access was refused, a re-served letter, an expert re-attending. Where the work is recorded against the cause, it is chargeable work. Where the bill simply carries a run of chasers, it reduces. The same evidential point applies once proceedings are on foot, which we cover in defendant conduct in housing disrepair costs.
Who pays for the inspection
Paragraph 7.7 allocates the expert’s fee between the parties at the pre-action stage: where a single joint expert is instructed, each party pays half; where the parties instruct separate experts, each pays the full cost of its own.
That is an arrangement about who funds the inspection at the time. It is not a decision about what is ultimately recoverable as a disbursement, and treating the two as the same thing costs money in both directions — a half-share paid under 7.7 still has to be justified as reasonable and proportionate if it is claimed. The recoverability question is dealt with in housing disrepair surveyor fees.
What the protocol expects to be on the file
Paragraph 5.2 sets out what the Letter of Claim should contain: the tenant’s details, a schedule of defects, the history, the notice given to the landlord, the effect on the tenant, any personal injury and special damages, the proposed expert, and disclosure requests. That list is worth treating as a costs document as well as a liability one, because each item is the contemporaneous evidence for work later claimed.
The protocol also refers to Form N260, the statement of costs, as the means of telling the landlord what the claim is costing. Providing a figure early does not fix the recoverable amount and does not bind the receiving party. What it does is make the costs claim harder to characterise later as a surprise assembled after settlement. If you are preparing one, the format points are in the N260 statement of costs.
Where pre-action costs are lost
- Settling the claim without settling costs. The single most expensive omission. It removes the CPR 46.14 route and leaves the entitlement under paragraph 11 with no mechanism behind it.
- No record of what the delay caused. Chasers are not a conduct argument. The event the delay produced is.
- Expert costs treated as automatically recoverable because paragraph 7.7 allocated them. Allocation and recoverability are different questions.
- Nothing said about costs until after settlement, so the first figure the landlord sees is the bill.
Practical checklist before you agree the settlement
- Does the agreement deal with costs, expressly, and not merely with damages and works?
- Can you state in one sentence what the claim achieved, by reference to the terms?
- Is the protocol timetable evidenced on the file, with dates against each stage?
- Where the landlord was late, is the consequence recorded against the work it caused?
- Was the expert single joint or separate, and does the file show which and why?
- Was an N260 or equivalent figure provided before settlement?
Paragraph 11 is a better provision than it is usually treated as being. It says the landlord will pay reasonable costs where the claim settles on terms that justified bringing it. The work is in being able to show, from the file rather than from assertion, that the terms did.