Part 35 Reports in Disrepair matters

In the majority of disrepair cases, liability hinges on Expert Evidence. The pre-action protocol states that the parties should attempt to agree a Single Joint Expert. If that is not possible, sometimes parties agree to instruct separate Experts and they provide a joint Scott Schedule.

Part 35 of the Civil Procedure Rules sets out the requirements for Expert Reports, which includes Survey Reports for disrepair matters – it provides guidance on the overriding duty to the court (CPR 35.3) and what should form the contents of the report. (CPR 35.10).

When a landlord receives a disrepair claim they do have the option to inspect the property within the first 20 working days. This usually means that an internal surveyor will attend and carry out an inspection. This is always good practice.

After the inspection, the in-house surveyor should produce a report which complies with CPR 35, and prepare a pre-action protocol compliant schedule of works, with proposed start and completion dates.

These are the key points to include in any in-house inspection report:

· Does the report address every alleged item of disrepair?

It is vital that every alleged defect in the letter of claim is dealt with in the report.

· Does the report confirm whether the alleged item falls within the landlord’s repairing obligations?

If a repair is needed, the report should confirm if it falls within the landlord’s repairing obligations under either the tenancy agreement, Sec 9, 10, 11 of the Landlord and Tenant Act 1989 or Sec 4 of the Defective Premises Act 1972.

· Does the report confirm what has caused the defect?

This is vital. Why is the repair needed? If there is dampness, it is key that the cause is identified. It is also important to note if the defect is due to tenant damage, as this could be recharged under the tenancy.

· Does the report include any additional items?

Once you have dealt with the repairs in the Letter of Claim, you must also do a full property inspection and check if any other repairs are needed. These should be set out separate to the defects in the Letter of claim.

· Is the Scott Schedule / Schedule of works costed?

You must put the actual costs of the repairs down on a schedule. The parties need to know the value of the repairs to deal with the claim.

To comply with CPR 35 the report must also:

· Be addressed to the Court.

· Give details of the expert’s qualifications.

· Give details of any literature or other material which has been relied on.

· Contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based.

· Make clear which of the facts stated in the report are within the expert’s own knowledge.

· Say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision.

· Where there is a range of opinion on the matters dealt with in the report.

· Contain a summary of the conclusions reached.

· If the expert is not able to give an opinion without qualification, state the qualification; and

· contain a statement that the expert:

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.

· Be verified by a statement of truth in the following form:

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Remember, if a disrepair claim ends up at court, this report may be your expert evidence. This means it is important you get it right the first time. The relevant Section of CPR can be found here.

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If you have any questions, please do not hesitate to contact Beth McKeown.