David Watkinson considers the proposals which suggest a new emphasis in the resolution of housing disputes.
Justice, the jurists’ organisation, has published a report (5th March 2020) “Solving Housing Disputes” authored by a number of lawyers (academic, practicing or retired) and chaired by Andrew Arden QC. The principal recommendation is to pilot the establishment of a new body, the Housing Disputes Service (HDS), which will take under its umbrella all jurisdictions, as the Courts, the Property Tribunals and the Housing and Local Government Ombudsmen, relating to housing. Its function will be to resolve them by a process of investigation, assessment, alternative dispute resolution and determination. The specialist staff will include lawyers, managers, investigators and surveyors. Free legal advice will be available to the occupiers except at the ADR stage. Any determination will be subject to appeal to the traditional courts on both law and fact as appropriate. The authors acknowledge this is a bold, ambitious proposal which is likely to take years to bring into effect. And it will cost, if properly done.
There I leave it as the report makes other proposals intended for speedier implementation which will cost little or nothing. They concern mediation/ADR and deserve consideration in their own right. As the report observes, “ADR offers widely acknowledged benefits to parties, the justice system and society: resolving disputes quickly and at far lower costs than litigation: maintaining relationships through a non-adversarial process providing the possibility of flexible and imaginative solutions” (para 3.76).
They range from the apparently minor to the more fundamental. Overall there should be provision in both the CPR and the Property Tribunal rules’ that strongly encourages the use of ADR/mediation in housing disputes but which stops short of actual compulsion. The proposals include the following:-
- re-visiting the housing disputes protocols in order to simplify them and make them more user-friendly
- provide a pre-action protocol for private possession claims in addition to the current social housing one
- requiring claimants in possession proceedings against both tenanted and mortgaged properties to state how they have worked with the tenant or borrower to resolve the issues between them
- requiring parties to explain on the pre-trial questionnaire why they do not wish to pursue ADR, in response to an assumption that ADR is suitable for most cases
- costs sanctions for failure to engage with ADR should be capable of imposition at an earlier stage than the conclusion of the case
- the definition of “legal help” for the purposes of enabling legal aid provision should be extended to include advising for and acting in ADR processes without prior authority from the Legal Aid Agency
- establishment of an ADR website which identifies providers
How much of this report will be taken up remains to be seen. It was not commissioned by the Government, nor has the Government shown any enthusiasm for spending money on the civil justice system over the last ten years (rather the reverse). Three of the twelve members of the group made a dissenting report (including the two representatives of the HLPA which promotes the interest of occupiers). However, as above, a number of proposals chime with what are becoming mainstream views as seen in my blog on ADR and Civil Justice, Feb 2019 and are worth taking forward.