CLEARPOINT · HOUSING DISPUTE RESOLUTION
Arbitration Rules · DRAFT FOR REVIEW — v0.1
Status of this Draft
Not for circulation to prospective sponsors, panel arbitrators, or claimant firms until settled by counsel.
This is a first working draft of a standalone set of arbitration rules for post-dispute, opt-in arbitration of housing disrepair claims (“the Scheme”). It is drafted to sit under the Arbitration Act 1996 and is designed to be used only after a dispute has already arisen — never as a pre-dispute clause inserted into a tenancy agreement. That distinction is the legal foundation of the Scheme and is non-negotiable throughout the drafting.
The Rules assume an initial sponsored pilot with one or two landlord bodies, with arbitrator fees underwritten by the sponsoring landlord, before wider opening. Sponsor-funding provisions are drafted to be removable once the Scheme is self-funding through party-paid fees.
This draft has not been reviewed by costs counsel or arbitration counsel. Before any Submission Agreement is put in front of a tenant, it must be reviewed against unfair-terms law, ideally by counsel with UTCCR and Consumer Rights Act 2015 experience. Everything in square brackets [ ] is a placeholder to be settled.
1. Introduction and Status of the Rules
1.1 These are the Arbitration Rules of the [ClearPoint Housing Disrepair Arbitration Scheme] (“the Scheme”), administered by [ClearPoint Housing Disrepair Arbitration Centre Limited] (“the Centre”).
1.2 The Scheme provides for the binding arbitration of housing disrepair disputes between a landlord and a tenant or occupier, by agreement of both parties, after a dispute has arisen. The Scheme does not provide for, and the Centre will not accept, any arbitration commenced under a clause agreed before the dispute arose.
1.3 An arbitration conducted under these Rules is a private arbitration governed by the Arbitration Act 1996 (“the Act”). Where these Rules are silent, the Act applies. Where these Rules and a mandatory provision of the Act conflict, the Act prevails.
1.4 The seat of every arbitration conducted under these Rules is England and Wales, regardless of the location of the property in dispute, unless the parties agree in writing and the Centre confirms in writing that the seat is Wales specifically for the purposes of any Wales-specific procedural law.
1.5 These Rules apply in the form current at the date the Submission Agreement (Rule 4) is signed by both parties, and continue to apply to that arbitration even if the Rules are later amended.
2. Definitions
2.1 In these Rules, unless the context otherwise requires:
— “the Act” means the Arbitration Act 1996;
— “Award” means any decision of the Tribunal on the substance of the dispute, including a partial, interim, or final award, and includes a costs award;
— “Centre” means [ClearPoint Housing Disrepair Arbitration Centre Limited], acting as the appointing and administering body under these Rules;
— “Claimant” means the party commencing the arbitration, whether landlord, tenant, or occupier;
— “Disrepair Dispute” means a dispute concerning an alleged failure by a landlord to comply with a repairing obligation, whether arising under section 11 of the Landlord and Tenant Act 1985, an express term of a tenancy agreement, the Homes (Fitness for Human Habitation) Act 2018, Awaab’s Law provisions, or an equivalent statutory or contractual repairing obligation;
— “Fee Schedule” means the schedule of the Centre’s administration fees and arbitrator fees in force at the date the Submission Agreement is signed, published by the Centre from time to time;
— “Panel” means the list of individuals accredited by the Centre as eligible for appointment as arbitrators under these Rules;
— “Party” means the Claimant or the Respondent, and “Parties” means both;
— “Respondent” means the party against whom the arbitration is commenced;
— “Sponsor” means a landlord body that has entered into a Sponsorship Agreement with the Centre under Rule 15;
— “Submission Agreement” means the agreement described at Rule 4, by which the Parties submit an existing Disrepair Dispute to arbitration under these Rules;
— “Tribunal” means the sole arbitrator, or panel of arbitrators, appointed to determine a particular Disrepair Dispute.
3. Scope and Application
3.1 These Rules apply only to a Disrepair Dispute in respect of residential premises in England or Wales.
3.2 These Rules may be used whether or not court proceedings have already been issued. Where proceedings have been issued, Rule 3.4 applies.
3.3 These Rules are not available for, and the Centre will decline to administer:
(a) a dispute arising from a clause in a tenancy agreement, terms and conditions, or any other document that purported to require arbitration before the dispute arose;
(b) a claim for possession, or any dispute in which possession of the premises is in issue;
(c) a dispute involving an allegation of unlawful eviction or harassment under the Protection from Eviction Act 1977;
(d) a dispute where either party lacks capacity to enter into the Submission Agreement, unless a litigation friend or equivalent representative is appointed and joins the Submission Agreement;
(e) a dispute the Centre otherwise considers, in its discretion, unsuitable for arbitration under the Scheme, including where the Centre has concerns about the fairness of the process to an unrepresented party.
3.4 Where court proceedings have already been issued, the Parties are responsible for seeking a stay of those proceedings by consent, or otherwise regularising the position with the court, before or promptly after signing the Submission Agreement. The Centre will provide a template consent order on request but is not responsible for the conduct of the court proceedings.
4. Commencement: the Submission Agreement
This is the most important Rule in the Scheme. It exists to ensure that submission to arbitration is a genuine, informed, individually-made choice by the tenant, made after the dispute has already arisen — not a term imposed in advance through a standard-form document. This distinction is what keeps the Scheme outside the unfair-terms risk that affects pre-dispute consumer arbitration clauses (see Appendix A for the supporting analysis).
4.1 An arbitration under these Rules is commenced only by both Parties signing a Submission Agreement in the Centre’s prescribed form (Appendix A), after the dispute giving rise to the claim has already arisen.
4.2 The Centre will not accept a Submission Agreement, and will decline to administer the arbitration, unless satisfied that:
(a) the Submission Agreement was individually agreed to by the tenant or occupier, and was not presented as, or derived from, a standard term in the tenancy agreement or any pre-printed document circulated in advance of the dispute;
(b) the effect of the Submission Agreement — including that the tenant is giving up the right to bring or continue a claim in court, and that the Award will be final and binding subject only to the limited grounds of challenge in the Act — has been set out clearly and prominently, in plain English, separately from any other document;
(c) the tenant or occupier has either (i) had the opportunity to take independent legal advice on the Submission Agreement, which for a represented tenant will ordinarily be advice from their own solicitor, or (ii) has been given a reasonable opportunity to decline arbitration and proceed in court instead, and has confirmed in the Submission Agreement that this opportunity was understood; and
(d) the arbitrator fees payable by the tenant, if any, are proportionate to the value of the claim, having regard to the Fee Schedule and any Sponsorship Agreement in place.
4.3 The Centre will retain a signed copy of every Submission Agreement, together with a short file note recording how it satisfied itself of the matters in Rule 4.2, for not less than fifteen years.
4.4 Where a Party is a litigant in person, the Centre will provide, free of charge, a plain-English guidance note on what arbitration involves and how it differs from court proceedings, before the Submission Agreement is signed.
4.5 A Submission Agreement may be limited to specified issues in the dispute, leaving other issues (for example, an ongoing claim for specific performance of repairing obligations) to be pursued separately in court, provided this is stated clearly in the Submission Agreement.
5. Appointment of the Tribunal
5.1 Unless the Submission Agreement provides otherwise, the Tribunal is a sole arbitrator.
5.2 The arbitrator is appointed by the Centre from the Panel, applying the following process:
(a) within five working days of receiving a validly completed Submission Agreement, the Centre will propose one Panel member suitably qualified in housing disrepair matters, having regard to the value, complexity, and any specific technical issues (for example, damp and mould, structural defects, or heating systems) raised by the claim;
(b) each Party has five working days to object to the proposed arbitrator on grounds of independence or impartiality under Rule 6; absent objection, the appointment takes effect;
(c) if either Party objects, the Centre will propose an alternative Panel member; if a second objection is raised on proper grounds, the Centre’s decision on appointment is final.
5.3 The appointment is made by the Centre in its own name as appointing authority. The contract for the arbitrator’s services is between the arbitrator and the Centre, not between the arbitrator and either Party, save that the Parties remain liable for fees as set out in Rule 13 and the Fee Schedule.
Drafting note: Rule 5.3 is the clause doing the institutional-defensibility work discussed earlier: the appointment and fee relationship sits with the Centre, not the individual arbitrator, so a departing Panel member cannot take a case, a sponsor relationship, or a fee stream with them.
6. Independence, Impartiality and Challenge
6.1 Every arbitrator appointed under these Rules must be and remain independent and impartial, and must disclose promptly any circumstances likely to give rise to justifiable doubts as to their independence or impartiality, in accordance with section 24 of the Act.
6.2 An arbitrator who has, within the preceding three years, acted for or against the landlord or managing agent involved in the dispute (whether as advocate, expert, or adviser) must disclose this before accepting appointment.
6.3 A Party wishing to challenge the appointment of an arbitrator must do so in writing to the Centre within five working days of the circumstances giving rise to the challenge becoming known, setting out the grounds relied upon. The Centre will decide the challenge, applying the test in section 24 of the Act, and its decision is final for the purposes of the administration of the Scheme, without prejudice to either Party’s rights under section 24 of the Act to apply to the court.
7. General Procedural Powers of the Tribunal
7.1 The Tribunal has the powers conferred by the Act, including the general duty under section 33 to act fairly and impartially, to adopt procedures suitable to the circumstances of the case avoiding unnecessary delay or expense, and to give the parties a reasonable opportunity to put their case and deal with that of the other party.
7.2 Subject to the Act and these Rules, the Tribunal may conduct the arbitration in the manner it considers appropriate, and in particular may decide:
(a) whether to hold a hearing, or to determine the dispute on the documents alone (see Rule 9.5);
(b) questions of procedure, evidence, and disclosure;
(c) whether and to what extent to apply strict rules of evidence;
(d) the language of the arbitration, which will be English unless the Tribunal directs otherwise to accommodate a Party.
7.3 The Tribunal must, at all times, have particular regard to the fact that a residential tenant or occupier acting in person may be unfamiliar with arbitral procedure, and must exercise its case management powers so as to ensure that unrepresented status does not, of itself, place that Party at a disadvantage.
8. Track Allocation
8.1 On appointment, the Tribunal will allocate the dispute to one of the following tracks, having regard to the value of the claim as stated in the Submission Agreement, the number and complexity of the disrepair items in issue, and whether expert evidence is required:
(a) the Documents Track — for claims where the value does not exceed [£25,000] and the disrepair items are not substantially in dispute as to their existence, applying the timetable at Rule 9.2;
(b) the Standard Track — for claims between [£25,000] and [£100,000], or involving contested expert evidence, applying the timetable at Rule 9.3;
(c) the Complex Track — for claims exceeding [£100,000], or raising unusual legal or technical issues, to be case-managed individually by the Tribunal.
8.2 Either Party may apply to the Tribunal for reallocation to a different track. The Tribunal’s decision on track allocation is a case management decision and is not open to challenge as such.
9. Procedure and Timetable
9.1 Within ten working days of appointment, the Tribunal will issue directions setting a timetable to the Award, addressing statements of case, disclosure, expert evidence (see Rule 10), and whether there will be a hearing.
9.2 On the Documents Track, the default timetable is: statement of case and response (20 working days); any reply (10 working days); joint or single expert report if required (20 working days); Award (20 working days from close of evidence). The Tribunal will aim to issue its Award within 16 weeks of appointment.
9.3 On the Standard Track, the default timetable extends the periods in Rule 9.2 as the Tribunal considers appropriate, with a target of issuing the Award within 26 weeks of appointment.
9.4 The target timescales in Rules 9.2 and 9.3 are case management targets, not contractual obligations, and may be extended by the Tribunal for good reason. The Tribunal must record its reasons for any extension beyond the target.
9.5 Determination on the documents alone, without a hearing, is the default on the Documents Track and is available on any track with the agreement of both Parties or by direction of the Tribunal where it considers a hearing unnecessary to deal justly with the case.
10. Expert Evidence
Duelling, unilaterally-instructed surveyors’ reports are one of the principal drivers of cost and delay in housing disrepair litigation. The single joint expert default in this Rule is deliberately the Scheme’s main point of difference from ordinary county court practice, and should be positioned to sponsors and claimant firms as such.
10.1 Unless the Tribunal directs otherwise, expert evidence on the existence, cause, or extent of disrepair, and on the cost of remedial works, is to be given by a single expert jointly instructed by the Parties and appointed by the Tribunal.
10.2 Where a Party has already obtained a unilateral expert report before the Submission Agreement was signed, that report may be placed before the single joint expert for comment, but does not itself stand as evidence in the arbitration unless the Tribunal directs otherwise.
10.3 A Party may apply to the Tribunal for permission to rely on its own expert in addition to, or instead of, a single joint expert, where the Tribunal is satisfied this is necessary to deal justly with the case — for example, because of a genuine conflict of expert opinion on a technical issue central to the dispute.
10.4 The fees of a single joint expert are shared equally between the Parties in the first instance, subject to the Tribunal’s power to allocate them differently in the Award under Rule 13.
11. Hearings
11.1 Where a hearing is held, it will ordinarily be conducted remotely by video link unless the Tribunal directs an in-person hearing, having regard to the needs of the Parties, including any vulnerability or lack of digital access.
11.2 A hearing on the Documents or Standard Track will not ordinarily exceed one day, unless the Tribunal directs otherwise.
11.3 The Tribunal may permit a Party to be accompanied or assisted by a lay representative, McKenzie friend, or support worker, whether or not that person has a right of audience, subject to the Tribunal’s general control of its own procedure.
12. The Award
12.1 The Award must be in writing, signed by the Tribunal, state the seat of the arbitration, and (unless the Parties agree otherwise) state the reasons for the Award, in accordance with section 52 of the Act.
12.2 The Tribunal may make more than one Award at different times on different aspects of the matters to be determined, including a partial Award dealing with liability before quantum.
12.3 The Award is final and binding on the Parties, subject only to the limited rights of challenge available under sections 67, 68, and 69 of the Act.
12.4 The Submission Agreement will record whether the Parties agree to exclude the right of appeal on a point of law under section 69 of the Act. The Centre’s recommended position, for the protection of an unrepresented tenant, is that section 69 rights are not excluded unless both Parties are legally represented at the time the Submission Agreement is signed.
12.5 The Centre will, on written request from the successful Party, provide reasonable assistance with the administrative steps for enforcement of the Award under section 66 of the Act, but is not itself responsible for enforcement.
13. Costs
13.1 The Tribunal has the power under section 61 of the Act to award costs, and unless the Submission Agreement or a Sponsorship Agreement provides otherwise, costs follow the event, meaning the unsuccessful Party will ordinarily be ordered to pay the reasonable costs of the successful Party.
13.2 The Tribunal may depart from the general rule in Rule 13.1 where it considers this just, including having regard to any offer to settle made and not accepted, the conduct of the Parties, and the extent to which each Party succeeded on the issues raised.
13.3 “Costs” in this Rule means the fees and expenses of the Centre and the Tribunal, and, unless the Submission Agreement provides that each Party bears its own legal costs, the legal and other costs reasonably incurred by a Party.
13.4 Where a Sponsorship Agreement provides for a landlord Sponsor to underwrite the fees of the Centre and the Tribunal, Rule 13.1 applies to costs as between the Parties as if those fees had been paid by the Party who would otherwise have borne them, so that the incentive effect of the costs rule is preserved.
14. Confidentiality
14.1 The arbitration, including the existence of the arbitration, the Submission Agreement, all documents produced in it, and the Award, is confidential, save that:
(a) either Party may disclose these to their legal or professional advisers, insurers, or funders;
(b) the Centre may use anonymised, aggregated data from concluded arbitrations for the purposes of the sector benchmarking and reporting described in any Sponsorship Agreement;
(c) disclosure may be made where required by law, by a regulator with jurisdiction over a Party, or for the purposes of enforcing the Award.
14.2 A landlord Sponsor may, under a Sponsorship Agreement, receive anonymised case-level data (resolution time, cost, and outcome category, but not the tenant’s identity or personal circumstances) for the purpose of monitoring the pilot, provided this is disclosed to the tenant in the Submission Agreement.
15. Fees and Sponsorship
15.1 The Centre’s administration fees and the Tribunal’s fees are as set out in the Fee Schedule in force at the date the Submission Agreement is signed.
15.2 A landlord body may enter into a Sponsorship Agreement with the Centre under which the Sponsor agrees to underwrite the Centre’s administration fees and the Tribunal’s fees, in whole or in part, for disputes involving that Sponsor as landlord, for a defined pilot cohort or ongoing arrangement.
15.3 Where a Sponsorship Agreement is in place, this must be disclosed to the tenant before the Submission Agreement is signed, together with an explanation that the Sponsor’s funding of fees does not affect the independence of the Centre or the Tribunal, and that Rule 13.4 preserves the normal costs incentive.
15.4 The Centre will publish, at least annually, a statement of the aggregate value of fees underwritten by each Sponsor, without reference to individual cases, as a transparency measure.
16. The Panel
16.1 The Centre maintains a Panel of arbitrators accredited to determine Disrepair Disputes under these Rules.
16.2 To be admitted to the Panel, a candidate must satisfy the Centre that they have appropriate legal or technical expertise in housing disrepair (whether as a solicitor, barrister, chartered surveyor, or equivalent), relevant arbitral or adjudicative experience or training, and no unmanaged conflict of interest with the landlord or claimant sectors.
16.3 Panel membership is personal to the individual and is not transferable. Removal from, or resignation from, the Panel does not affect the validity of an appointment already made, but the former Panel member will not be appointed to any new arbitration under these Rules.
16.4 The Centre, not any individual Panel member, is the counterparty to any Sponsorship Agreement, framework arrangement, or referral relationship established under the Scheme.
17. Complaints about the Administration of the Scheme
17.1 A complaint about the conduct of the Centre’s administration of an arbitration (as distinct from a challenge to the Tribunal under Rule 6, or a challenge to the Award under the Act) may be made in writing to the Centre’s [complaints officer].
17.2 The Centre will acknowledge a complaint within five working days and provide a substantive response within twenty working days.
18. Amendment of these Rules
18.1 The Centre may amend these Rules from time to time. Amendments do not apply to an arbitration for which a Submission Agreement has already been signed, save with the written agreement of both Parties.
19. Notices
19.1 Any notice or communication under these Rules may be given by email, to the address provided by each Party in the Submission Agreement, and is deemed received on the next working day.
19.2 The Centre will, on request, provide notices in an alternative accessible format to a Party who needs one.
Appendix A: Model Submission Agreement, and Supporting Legal Note
A.1 Why this Rule set is built around a post-dispute Submission Agreement
Under section 91 of the Arbitration Act 1996, a consumer arbitration agreement is automatically treated as unfair, and so unenforceable, where the amount in dispute does not exceed £5,000 (the amount specified by the Unfair Arbitration Agreements (Specified Amount) Order 1999). Above that figure, the agreement is not automatically unfair, but remains open to challenge under the Unfair Terms in Consumer Contracts Regulations 1999 and, for agreements made after 1 October 2015, the Consumer Rights Act 2015.
In Mylcrist Builders Ltd v Buck [2008] EWHC 2171 (TCC), the Technology and Construction Court refused to enforce an arbitration award against a consumer, on a claim just above the £5,000 threshold, arising from a standard-form building contract. The court’s reasoning turned on: the clause preventing the consumer from accessing the courts at all; the arbitrator’s fees being disproportionate to the claim; the clause not being set out clearly or prominently; the consumer having had no professional advice on the contract; and the term having been included, even without deliberate intent, in a way that took subconscious advantage of the consumer.
Every one of those factors is capable of applying with equal force to a pre-dispute arbitration clause inserted into a standard residential tenancy agreement. The Scheme is accordingly built to avoid that fact pattern entirely, by requiring: (i) submission only after the dispute has arisen (Rule 4.1); (ii) individual agreement rather than a standard term (Rule 4.2(a)); (iii) clear, prominent, plain-English disclosure of the effect of arbitrating (Rule 4.2(b)); (iv) an opportunity for independent advice or a genuine choice to proceed in court instead (Rule 4.2(c)); and (v) proportionate fees (Rule 4.2(d)).
Drafting note: This analysis should be treated as a working hypothesis, not settled advice. It has not been reviewed by arbitration or consumer-law counsel. Before the Scheme accepts a real case, this section and the model Submission Agreement below should be settled by counsel with specific UTCCR/CRA 2015 and Arbitration Act experience, and ideally tested against the Financial Conduct Authority and Civil Mediation Council’s published guidance on consumer ADR fairness, if any applies by analogy.
A.2 Model Submission Agreement (drafting skeleton)
The following is a skeleton only, to be developed into a full-form document once the legal review at A.1 is complete. Headings in [square brackets] indicate content to be drafted.
— [1] Identification of the Parties and the property
— [2] Confirmation that a Disrepair Dispute has already arisen, with a short description of it
— [3] Plain-English statement, set out prominently and not buried in other text, that: —By signing this agreement you are agreeing to have this dispute decided by an arbitrator instead of a judge. The arbitrator’s decision will normally be final. You are giving up your right to have this dispute decided by a court.—
— [4] Confirmation of whether the tenant has had independent legal advice on this agreement, and if not, confirmation that the Centre’s plain-English guidance note (Rule 4.4) was provided and that the tenant was told they could choose to go to court instead
— [5] The scope of the dispute being submitted (all issues, or specified issues only — Rule 4.5)
— [6] The track proposed (Rule 8) and the applicable Fee Schedule, including whether a Sponsor is underwriting fees (Rule 15.3) and what that means for the tenant
— [7] Confirmation of the position on section 69 appeal rights (Rule 12.4)
— [8] Signature of both Parties, with date, and a short certificate from the Centre recording how Rule 4.2 was satisfied
Appendix B: Indicative Fee Bands
Placeholder bands only, to be aligned with the fee-banding structure already developed for ClearPoint’s Early Neutral Evaluation and Pathway Assessment services, and to be tested against what a Sponsor is willing to underwrite for a pilot cohort.
— Band 1: Claims up to £5,000 — [not accepted; see Rule 3 and the £5,000 statutory threshold]
— Band 2: £5,001 — £10,000 — Documents Track — [— ] Centre fee / [— ] arbitrator fee
— Band 3: £10,001 — £25,000 — Documents Track — [— ] Centre fee / [— ] arbitrator fee
— Band 4: £25,001 — £50,000 — Standard Track — [— ] Centre fee / [— ] arbitrator fee
— Band 5: £50,001 — £100,000 — Standard Track — [— ] Centre fee / [— ] arbitrator fee
— Band 6: above £100,000 — Complex Track — fees to be agreed on a case-by-case basis
Single joint expert fees (Rule 10.4) are additional and are estimated separately once the scope of expert evidence required is known.
