Guidance for landlords and tenants on expert evidence under the Housing Conditions Protocol
In Lancastle v Curo Group (Albion) Limited [2025] EWCC 48 – a combined judgment on two similar disrepair claims – the County Court has provided significant guidance on how and when tenants may obtain expert evidence, and the consequences of premature or unilateral expert appointments.
The judgment is a must-read for both claimant and defendant practitioners in the housing disrepair field, as it clarifies the interaction between the Pre-Action Protocol for Housing Conditions Claims and the use of expert evidence under CPR 35.
The cases in brief
The court heard together the claims of:
- Miss Lancastle – alleging damp, mould, and other defects at her Bristol home managed by Curo Group (Albion) Ltd
- Mr Bailey & Miss Bennet – alleging roof defects, draughts, and mould at their Keynsham property let by Curo Places Ltd.
In each case, the tenants’ solicitors proposed a surveyor in the letter of claim. Curo objected, stating that its own in-house surveyor would inspect first, and that expert evidence was not yet required. Extensions of time for Curo’s formal response were agreed.
Before those extended deadlines expired, the tenants instructed their own experts (Mr Hedges MRICS and Mr Smit ARICS respectively) as sole experts under CPR 35. These reports were later relied upon in the Particulars of Claim.
Curo applied to strike out the claims or, alternatively, to exclude the tenants’ experts and order the appointment of a Single Joint Expert (SJE).
The key legal issues
The applications raised multiple protocol and procedural points, including:
- Timing of expert instruction – can a tenant instruct their own expert before the landlord’s extended time for a protocol response has expired?
- Engagement with the landlord’s response – must the tenant consider and respond to the landlord’s findings before appointing an expert?
- Nature of expert appointment – when should a single joint expert be preferred over separate experts?
- Consequences of breach – should premature or unilateral expert instruction lead to strike out or evidential sanctions?
The judgment
HHJ Blohm KC found that in both cases the tenants’ early instruction of their chosen experts was premature and not in accordance with the Protocol, as they had agreed to extend Curo’s time for a response but did not wait for that period to expire. In addition, the letters of claim which discussed the appointment of experts did not provide crucial information in relation to experts charging rates and fees, and the Claimants’ experts had not been provided with Curo’s responses.
The court stressed that:
- Protocol compliance matters – extensions to the landlord’s response period also extends the point at which a tenant may instruct their expert
- Engagement is expected – tenants should at least notify the landlord if they disagree with its response, engage in discussion in order to narrow the issues, prior to proceeding to instruct their own expert
- SJE remains the default – the Protocol presumes that expert evidence will usually be from a single joint expert, even if parties send separate instructions. Though if agreement on the instruction of an SJE is not possible, then separate experts is permissible and indeed envisaged by the Protocol.
Crucially, however, the judge concluded that the obtaining of the reports, in principle, was not done in breach of the Protocol and rejected Curo’s argument that no expert evidence was required at all. In each case, there was a genuine dispute about the existence and cause of disrepair. The appointment of the experts were not made in bad faith.
The court declined to strike out either claim, but was critical of the failure to engage with the landlord’s response before commissioning reports. While this did not justify excluding the experts in these cases, the judgment makes clear that in future such conduct could attract costs penalties or evidential restrictions.
In consequence, the Claimants:
- were precluded from recovering the costs of instructing and obtaining evidence from their experts.
- Were ordered to pay the costs of any Part 35 questions put to the experts by Curo as well as the cost of the responses provided by the experts.
Why this decision matters
This ruling reinforces several important points for disrepair litigation:
- Extensions have real effect – if you agree to extend the landlord’s response period, you must wait until that period ends before instructing your own expert
- Protocol is a two-way street – tenants must engage meaningfully with the landlord’s position; landlords must act reasonably and promptly in inspection and response
- SJE as the starting point – courts will expect serious consideration of a Single Joint Expert before moving to separate experts, to keep costs proportionate
- Bad faith is rare but costly – premature expert appointments risk adverse costs or evidential sanctions, even if the claim survives.
Implications for practitioners
For tenant representatives:
Plan expert instruction carefully and communicate intentions clearly to avoid later procedural challenges. Failure to do so risks undermining otherwise strong claims.
For landlord representatives:
Use the Protocol’s provisions on expert selection and timing to resist premature instructions and to press for cost-efficient SJE arrangements.
8PP’s view
This judgment offers valuable practical guidance on balancing the need for swift remedial action with the requirements of the Protocol. It highlights that while the court will protect genuine disputes from procedural knockout, it expects parties to follow both the letter and the spirit of the Protocol.
If you are involved in a housing disrepair claim and need expert advice on protocol compliance, expert evidence, or strategic case management, please contact 8PP via clerks@8pp.co.uk or call 0151 245 9292.