The Housing Law Practitioners’ Association (HLPA) intervened in the Court of Appeal in Khan v Mehmood.
Simmons v Castle
The case of Simmons v Castle established that Claimants in personal injury, defamation, and other torts which cause suffering, inconvenience or distress to individuals, should be 10% higher than previously. This was to partially compensate Claimants for legislative changes which limited legal aid and meant that success fees in cases funded by Conditional Fee Agreements (CFAs) could no longer be paid by the Defendant and must be taken from Claimant’s damages. Simmons v Castle is routinely used by housing practitioners in housing disrepair and other cases to justify a 10% uplift on damages.
Khan v Mehmood
The landlord in Khan v Mehmood argued that the 10% uplift should not apply to disrepair cases because damages in those cases are calculated by reference to a reduction in rental value rather than by tariff.
HLPA intervened, and Eleanor Solomon of Anthony Gold Solicitors submitted witness evidence on HLPA’s behalf. HLPA’s submissions set out that the 10% uplift was routinely awarded in disrepair cases, that the uplift was intended to apply to this kind of case, and that Claimants in disrepair cases receive modest levels of damages, meaning that the 10% uplift is necessary and has a significant affect on the level of compensation they receive. HLPA also set out that the number of legal aid practitioners specialising in disrepair is falling. Representation by CFA is therefore increasingly common and necessary for potential claimants. The success fee is a vital part of the sustainability of representation for tenants, particularly for those in social housing or at the lower end of the private housing market who are unable to afford legal fees out of their own resources. Removing the Simmons v Castle uplift, and thereby reducing the level of general damages, would have an adverse impact on success fees and the availability of legal representation for such claimants.
HLPA’s submissions were accepted and the 10% uplift will continue to apply to damages in disrepair claims.
Why the Khan v Mehmood Judgment Matters
This is an important judgement, firstly because it safeguards levels of damages for tenants and leaseholders in disrepair cases. If the landlord had been successful then damages in disrepair cases would have fallen. Secondly, it recognises the issues with funding disrepair and other housing claims, and the shortage of practitioners in this area as a result. Funding of housing claims is massively threatened by Fixed Recoverable Costs, which are due to apply to most housing cases from April 2023. The judgement in Khan v Mehmood recognises that further cuts to costs or damages in disrepair cases will make funding many disrepair cases unviable, which will be a huge loss to tenants living in poor housing conditions.
Eleanor Solomon is a specialist in housing and property disputes. She advises tenants and leaseholders on forcing landlords to comply with their legal obligations, including making repairs. She also helps clients who are facing possession orders, homelessness or have bought a defective new build property.