Court awards pre-allocation costs in housing disrepair claim despite omission of CPR 46.11

In Carter v Leeds City Council (County Court at Leeds, District Judge Hill, 17 June 2025) the court considered whether, following the omission of CPR 46.11 from the CPR, it retained jurisdiction to award pre-allocation costs in a small claim for housing disrepair, post allocation of the claim to the small claims track.

The decision will be of interest to housing disrepair practitioners on both sides, particularly where repairs are effected before service of proceedings but substantial pre-allocation work has been undertaken.

The case in brief

• The claim concerned alleged housing disrepair
• The claim had been allocated to the small claims track and listed for trial
• At trial, damages and the scope of repairs were agreed; repairs had been completed on 19 December 2024, three days before service of the claim
• The only live issue was costs – specifically whether the claimant could recover pre-allocation costs as if the matter had proceeded on the fast track.

The parties’ arguments

• For the Defendant: The omission of CPR 46.11 from the CPR following its amendment in October 2023 removed the court’s jurisdiction to award such costs. Reliance was placed on Cook on Costs, which suggested that after the rule change, the discretion in cases such as Birmingham City Council v Lee was no longer available once a claim had been allocated to the small claims track.
• For the Claimant: Birmingham v Lee remained good law. The reasoning in that case rested not on CPR 46.11 itself, but on the operation and policy of the Pre-Action Protocol for Housing Conditions Claims. Counsel argued that CPR 44.2 still provided a discretion to award costs in analogous situations.

The court’s reasoning

DJ Hill held that Birmingham v Lee remained binding and its policy rationale was still valid. The omission of CPR 46.11 removed both the “rule” and its “exception”, but no replacement provision restricted the court’s discretion on pre-allocation costs. Commentary in Cook on Costs was not determinative.

The court concluded that it retained discretion to award pre-allocation costs where appropriate and that this case fell within that scope.

The outcome

• The claimant was awarded costs up to 19 December 2024.
• Given damages of £600 and repair costs of approximately £1,200, the judge considered proportionality and assessed the recoverable costs at £6,500 -between the claimant’s suggested £9,500 and the defendant’s £4,750.

Commentary

This decision will no doubt be welcomed by claimants and their representatives, who have been concerned about being confined to fixed small claims costs in cases allocated to the small claims track where a pre-allocation costs order is not made prior to (or, at the latest, at the same time) as the court considers allocation. The converse, of course, is true for landlords and their representatives.

If this decision reflects the correct position in law, then as someone regularly instructed to represent tenants both on allocation and at trial, it eases the pressure somewhat, knowing that a court who allocates to the small claims track and declines to make a pre-allocation costs order does not necessarily mean that a tenant and their solicitor are consigned to recovering only fixed small claims track costs.

However, I am not sure that the decision is correct. Indeed, it runs contrary to my own views, which, it is fair to say, are more aligned with the position adopted by counsel for the landlord.

Let me explain why.

Allocation to the small claims track brings with it (without any distinct order in relation to pre-allocation costs) recovery of costs in accordance with CPR 27.14(2). This rule states that the only costs that the court may allow are those which are listed in CPR 27.14(2)(a) to (h).

While the rule says ‘may’ and not ‘must’, I take the view that the drafters intended ‘may’ in the same way that they did when drafting the “old” rules that govern claims which bring with them entitlement to fixed recoverable success fees (e.g. RTA claims). In Kilby v Gawith [2008] EWCA Civ 812, the Court of Appeal determined that despite the use of the word may in the rule, a successful claimant who had entered into a conditional fee agreement was entitled to a success fee payable in accordance with the rules. The court had no discretion to award a different success fee, or none at all.

The judge in this case appears to have accepted that he had a general discretion under CPR 44.2 to award pre-allocation costs (presumably referring to CPR 44.2(6)) – as he had not “…been taken to any rule limiting pre-allocation costs or rule which governs the track, thus to [his] mind the court’s discretion is, and remains, at large”.

Two matters arise:

1. CPR 27.14(2) specifically governs costs in a claim allocated to the small claims track; from the transcript, it does not appear the judge was referred to it.
2. In Solomon v Cromwell Group Plc [2011] EWCA Civ 1584 the Court of Appeal confirmed that where a general rule and a specific rule both apply, the specific takes precedence. Accordingly, CPR 27.14(2) should override the court’s general discretion under CPR 44.2(6).

Key takeaways for practitioners

1. The omission of CPR 46.11 does not, at least at County Court level, preclude recovery of pre-allocation costs in appropriate cases.
2. Birmingham City Council v Lee continues to be applied as binding authority, with emphasis on protocol compliance and fairness.
3. Cost assessments will remain subject to proportionality, even where discretion is exercised in the claimant’s favour.

Craig Leigh is Founder & Managing Director of 8PP. 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 This email address is being protected from spambots. You need JavaScript enabled to view it. or call 0151 245 9292.