Mirza: Many social landlords fail to carry out works as agreed
By Lia Mirza, trainee solicitor, consumer claims at Legal Futures Associate Express Solicitors
Housing disrepair claims are increasingly forming the backbone of access to justice for tenants living in sub-standard accommodation.
However, one of the more frustrating realities for solicitors and claimants alike is this: even after settlement is reached, the repairs don’t always get done. Despite agreed terms, whether via part 36 offers or post-issue consent orders, many social landlords delay or fail to carry out remedial works in accordance with settlement timelines.
I will explore the post-settlement enforcement scene in housing disrepair claims, delving into the procedural options under the Civil Procedure Rules (CPR) and the practical steps required to compel compliance, while highlighting the distinct challenges depending on whether a claim settles pre- or post-issue.
Settlement
In Guthing v Lynn [1831] 2 B & AD 232, the court refused to enforce a contract where a purchaser promised to pay “an extra £5” for a horse “if it was lucky”. The court found that this was too vague to be enforceable; it lacked certainty, and so no binding obligation could arise.
This principle remains central: a settlement agreement is, at its core, a contract. If its terms are vague or ambiguous, especially around the performance of repairs, it risks becoming unenforceable, or at the very least difficult and costly to enforce. The key rule here is to ensure certainty in any settlement!
Pre-issue settlement breaches
When a matter settles pre-issue after the claimant accepts a part 36 offer, the agreement typically takes the form of a contract, not a court order.
CPR 36.14(8) specifies: “Where – (a) a Part 36 offer (or part of a Part 36 offer) which is not an offer to which paragraph (6) applies is accepted; and (b) a party alleges that the other party has not honoured the terms of the offer, that party may apply to enforce the terms of the offer without the need for a new claim.”
Part 8.1(2) is another example as to why it is vital that the settlement terms are clear. If there is a breach and the settlement terms were certain, there should be no dispute of fact, and a part 8 procedure can be used by the claimant to order for specific performance.
Complying with CPR 8
Part 8.2 specifies: “Where the claimant uses the Part 8 procedure the claim form must state –
(a) that this Part applies;
(b) (i) the question which the claimant wants the court to decide; or (ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy.”
In practice, claimants would want the court to decide the question of whether the landlord is in breach of the settlement agreement. The remedy sought would be an order for specific performance and the legal basis that the defendant is in breach of contract.
What is the advantage of part 8?
Because part 8 claims are intended for matters where there is no substantial dispute of fact, they provide a streamlined and cost-efficient process that can be advanced swiftly. The evidential requirements are governed by CPR 8.5.
Well, what next?
I may sound like a broken record, but where the settlement is certain and specific, the defendant has no effective defence. If the defendant fails to file an acknowledgment of service, the claimant cannot request default judgment under part 8 but can instead apply for summary judgment on the basis that there is no realistic defence to the claim.
Under CPR 8.4(2), a defendant who does not file an acknowledgment of service may attend the hearing but cannot take part in it unless the court grants permission.
Seeking compensation on enforcement – breach has consequences
Where a landlord fails to honour the terms of a disrepair settlement, particularly one that included a clear timeframe for repairs, the claimant may be entitled to additional compensation. This is not simply a matter of enforcing performance: it is also about remedying the further inconvenience and losses suffered as a result of the landlord’s breach of the settlement agreement.
Missed deadlines = Fresh losses
It’s important to remember that the original settlement was negotiated on the assumption that the works would be completed by a specific date. That deadline formed part of the basis for assessing quantum.
When the landlord fails to comply, that agreement is breached, and new losses may arise, such as prolonged exposure to disrepair, further damage to personal belongings, distress and/or inconvenience, and additional financial costs (where provable).
These are all potential heads of loss and claimants are entitled to seek supplementary damages reflecting this further period of disrepair.
Compensation and costs
When bringing enforcement proceedings under part 8, it is entirely appropriate to seek:
- Specific performance for the outstanding works;
- Additional general damages for continued inconvenience;
- Special damages, where further loss can be evidenced; and
- An order for costs, reflecting the defendant’s breach and the need to issue further proceedings.
CPR 8.9(c) – Multi-track treatment
A key procedural point is CPR 8.9(c). It is critical to understand and to explain to the defendant if needed that this is a deemed allocation to the multi-track. The claim is not actually allocated by court order.
Despite this, defendants sometimes resist the approach, arguing that they never consented to a multi-track claim. Furthermore, this rule also means that there is no provision for cost budgeting.
Settling enforcement proceedings
Even after enforcement proceedings have begun, settlement remains a viable and often preferred option. Parties can agree to resolve disputes without the need for further court orders or hearings, saving time and legal costs.
However, to prevent the matter reverting to the initial stages of the claim, it is vital that any settlement reached during enforcement is clear, specific and certain. Vague or ambiguous terms risk reopening disputes.
Why certainty matters
A settlement with well-defined repair obligations, deadlines, and enforcement mechanisms reduces the risk of further non-compliance.
Clear terms empower the court to quickly enforce the agreement if breached again, often via summary judgment or part 8 proceedings without starting a new claim.
When settling enforcement proceedings, always draft terms with specific descriptions of the works required, or reference to the expert report relied upon, and firm deadlines for completion of repairs.
Post-litigation settlement breaches
Breach of Tomlin order
A Tomlin order comprises a consent order and a schedule. It is used to stay the proceedings on agreed terms. Essentially, the claim can return to court without the need for issuing fresh proceedings in the event of a breach of the order.
The first clause of any Tomlin order will generally state that the proceedings are stayed on the terms set out in the attached schedule. These terms reflect the parties’ negotiated settlement and can include obligations such as payment of damages, completion of works or other agreed actions.
Crucially, the order must include an express provision granting permission to apply to the court. This enables the claimant to return to court to enforce the terms of the settlement without the need to issue fresh proceedings.
This acts as a safeguard for tenants if a landlord fails to carry out agreed works or make compensation payments as promised.
What happens if settlement has been breached and repairs are not done?
Where the terms of a Tomlin order are breached, for instance, if agreed repairs are not carried out by the landlord, the enforcement process can be relatively straightforward.
The claimant may issue an application using form N244, seeking to lift the stay of proceedings. This application will also request an order for specific performance to compel the landlord to carry out the required works.
In addition, the claimant may seek further damages and costs. The ability to return to court in this way, without issuing fresh proceedings, is a key advantage of the Tomlin order.
