Trinity Housing barrister, Peter Marcus acted on behalf of City of York Council in its successful application for summary judgment on the day of trial, leading to the Claimant’s solicitors being ordered to pay wasted costs. Below is his article reflecting on the County Court decision.
Disrepair solicitors First Legal ordered to pay £9,414 wasted costs to City of York Council. How can solicitors get everything so wrong?
KS v City of York Council; (unreported); DJ Mark, York County Court; 21 May 2025
I do not often write an article about a single, otherwise unreported case. This is an exception, mainly because, following an article in the Law Society Gazette (16 July 2025), I have been asked many times over the past fortnight for more details about what led to a summary judgment on day of trial with a hefty wasted costs order of £9,400 against Liverpool-based CFA disrepair solicitors First Legal, who badly let down their client and wasted everyone’s time with conduct that was, as the judge found, certainly unreasonable, if not negligent.
It is rare for a case to reach court on day of trial in such a poor shape that it deserves the draconian measure of being struck out without evidence having been tested at all. But this case was one of those. The headline failings in First Legal’s case (among many others) were:
(a) a tenant’s witness statement that did not refer to a single defect at her property;
(b) the tenant’s formal pleadings (Particulars of Claim) that specified not a single date of notice, promising weakly that “further detail will be given in the Claimant’s witness statement”;
(c) no such further detail ever having been given, the witness statement mentioning no date of any notice by the tenant to her landlord of any defect.
These failures prompted City of York Council to apply on the day of trial for summary judgment, on the basis that – given the papers before the court – the tenant had no real prospect of succeeding on her claim. At York County Court, the experienced and respected District Judge Mark thoroughly considered the legal test for summary judgment, before deciding that the Claimant’s prospects on paper were irretrievably doomed. The Claimant tenant had no real prospect of success.
But the above omissions by First Legal were not the only weaknesses in this case.
Had there been a trial, I would have had the chance to ask the tenant whether her decision to engage solicitors had been prompted by a knock on the door from claims farmers claiming to be from the council, an increasingly familiar story in disrepair claims.
I would also have been able to ask her why – with no explanation – she had not – ever – used any freely available way of complaining about her housing conditions prior to engaging solicitors. Not the Housing Ombudsman, nor councillors, nor her MP, nor York Council’s own complaints procedure.
It is of note that the tenant’s surveyor claimed to have found the need for repairs that he valued at just over the magic threshold of £1,000. In this particular case, the alleged valued of works was… £1,012. It is also of note that the RICS have in the past 18 months issued two Practice Alerts regarding surveyors’ conduct in disrepair cases.
Meanwhile, the independent external surveyor instructed by the Council found only one notified defect (some loose skirting board in the hallway) with remedial works that he valued at £30.
As if more negative points were needed, First Legal had breached the Pre-Action Protocol in at least twelve different ways. City of York Council pleaded this in their Defence. The Claimant produced no Reply.
Oh, and there was strong evidence that the tenant had refused to allow the Council access to do works, in breach of her tenancy agreement, yet apparently on the advice of her legal representatives. Such conduct is of course a regulatory concern , and it is by no means unusual that many tenants who find themselves in court in a disrepair trial, reveal under cross-examination in court that they have had stern warnings from their own solicitors that the tenant must not allow their landlord to do any repairs at their home.
And, for good measure, the claim involved no damp or mould whatsoever.
So, the claim passed the Summary Judgment test, but also the high hurdle set for achieving wasted costs orders. The only justice for this tenant Claimant was that it was her solicitors, and not her, who had to pay the Council’s costs of £9,414.20.
I imagine that the tenant, whose case went up in smoke for reasons she may not have understood, must be baffled by the actions of the people she had a right to think were qualified, regulated solicitors who should be acting in her best interests. It is of note that the Solicitors Regulation Authority expressed an interest in collecting information about this case, following the initial piece that went out in the Law Society Gazette in late July 2025.
Peter is regularly recognised in the leading legal directories, recent entries include:
"Peter is passionate about achieving the best results for his clients. His preparation is second to none, and clients love his down to earth and straight-talking style." "One of the best housing disrepair barristers out there. Totally committed." "Peter is an excellent advocate who is knowledgeable in a wide range of issues while remaining friendly and approachable." "Peter is a extremely knowledgeable in the field of social housing. He is always willing to take on challenging cases and is a tenacious advocate."
Chambers & Partners 2025
"Peter is a formidable barrister who is quick thinking, approachable and friendly. His cross-examination style is excellent: he pulls no punches."
Legal 500 2025