Fast-track costs for small claims

Birmingham City Council v Lee [2008] EWCA Civ 891

The Pre-action Protocol for Housing Disrepair Cases requires the tenant to give early notification to the landlord that a claim is being made, rather than commence proceedings immediately. Where the landlord promptly carries out the repairs, as in this case, that removes from the tenant’s claim in any subsequent court action, any application for specific performance of the repairing covenant, and will very often leave outstanding in the action only a claim for consequential damages. If the landlord does not carry out the repairs and the tenant therefore has to sue for specific performance, as well as for consequential damages, the CPR allocate the action to the fast-track. But an action for consequential damages alone because the repairs have been done will often fall to be allocated to the small claims track. In these circumstances what, if any, order ought to be made as to pre-action costs? In particular, should some order be made which reflects the fact that until the repairs were carried out, the tenant’s claim (notified under the protocol) was for specific performance, as well as for damages and would potentially have been for allocation to the fast track? To make the rules and protocol operate in the manner which must be intended, is some order for pre-action costs necessary, and if so, what?