Stathis Kosteletos looks at the applicability of the 10% Simmons v Castle [2012] EWCA Civ 1288 uplift in housing disputes.

In the recent Court of Appeal judgement of Khan v Mehmood (2022) EWCA Civ 791, the Court made clear that the 10% uplift provided in S44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 applies to damages flowing from a breach of a repairing covenant.

Facts

This was a rather unusual case, the claim began life as a possession claim, at the first instance hearing back in August 2014 the Claimant Ms Khan did not attend and the possession claim was struck out. The Judge at that hearing found in favour of the Defendant in relation to a counterclaim which included general disrepair damages. The Judge added the Simmons v Castle uplift to those damages.

Ms Khan appealed shortly thereafter, on four separate ground, but this was not actioned until some 4 years later. The reason for this is not quite clear. The appeal was eventually heard in August 2019 and all elements were rejected. This decision was appealed on two grounds. The first was a factual dispute and the second regarding the applicability of the uplift.

The initial suggestion by Ms Khan was that the uplift should only apply to cases where damages are calculated with reference to a tariff. However, there was also arguments put forward about the appropriateness of the uplift generally and how the uplift did not give effect Jackson reforms.

The Court disagreed with these arguments and found that there was no justifiable reason to treat damages flowing from a breach of repairing covenant differently. The court noted the judgment in Simmons v Castle could have excluded these claims but did not and that there was no justification to depart from the usual practice.

Comment

The court finding that the uplift applies is rather unsurprising as it has been considered to be applicable for some time. However, this decision does remove any doubt on the applicability of the uplift to damages for disrepair. 

The most significant take away for landlords is to be mindful of the uplift when making offers of settlement and ensure that any offers include the uplift of 10%. This should have two benefits. Firstly, it should mean that more claims settle earlier without the need to resort to litigation, which saves time and resources, as well as fostering a more constructive future relationship.

The second benefit is, it will act as protection when it comes to costs, should a landlord be liable. An early and pragmatic settlement offer will limit costs exposure and demonstrates the reasonableness of the landlords actions from an early stage.

How Birketts Can Help?

Birketts have a specialist team of Housing Management lawyers to assist our clients stay ahead. Our expert lawyers can advise on all aspects of housing and asset management from complex ASB claims, Equality Act defences, Building Safety issues, defending disrepair claims/EPA prosecutions, subletting/housing fraud cases, service charge disputes, s.20 consultation issues, applications to vary defective leases, to name but a few of the issues we can assist with. Our experts have decades of experience acting for Registered Providers and Local Authorities and offer a truly ‘one stop shop’ for the issues facing the sector.

If you have any queries regarding the content of this article or wish to discuss any issue regarding the management of your tenants or stock, please contact Clive Adams, Jonathan Hulley or any member of the Social Housing Team, to see how Birketts can help you.