The problem is that T will normally follow the pre-action protocol for housing disrepair cases; L will then carry out the repairs, with T then making a claim for damages (but not seeking relief by way of specific performance because that is no longer needed). Since the claim is for less than £5,000, without specific performance, it is therefore allocated to the small claims track – and a much lower costs regime.

However, the CA has side-stepped this problem by saying that, since the launch of the Protocol, it is no longer the case that a claim is only made (for costs purposes) when litigation is begun. On the contrary, the Protocol requires a claim to be advanced initially in accordance with the Protocol, under a warning that there is likely to be a costs penalty if it is not. On that basis, T should have his costs on what would prospectively have been a fast track claim, and on that basis up to the date on which L completed repairs prior to proceedings. Note that it does not follow that the same level of success fee will be appropriate to a ‘Protocol claim’ as would be in a typical ‘litigation claim’. But, as a note in the NLJ points out, what this decision really means is that T may now bring proceedings purely for costs under the Protocol and without a damages claim. Either way, it is an interesting decision from the CA. See note on Lee v Birmingham [2008] EWCA Civ 891 in [2008] NLJ 1293 .© Practical Lawyer