The housing disrepair landscape continues to shift, and Birmingham v Lee (BvL), remains firmly at the centre of the debate. As defendants attempt to steer cases into the small claims track, recent judicial comments show that fast track allocation remains not only appropriate in many cases but crucial for ensuring fairness in the interests of justice.

A recent matter in the County Court, combined with new case law, Shillito v Sheffield City Council (2025) and Fishwick v Gentoo Group Ltd (Appeal 2025), confirms that courts are still applying the principles of BvL and the Civil Procedure Rules robustly when deciding whether to allocate the claim to the fast track, intermediate track or even the multi track.

A Recent Case Study: Court Signals Support for Oral BVL Applications at Allocation

In a recent disrepair claim we handled, the tenant sought specific performance (SP) due to longstanding unresolved defects. The defendant resisted fast track allocation, aiming to have the case allocated to the small claims track despite clear evidence that major issues persisted. Following service of updated evidence demonstrating that repairs remained incomplete, the defendant conceded allocation to the fast track at the eleventh hour.

Although the judge did not have to rule on the disputed allocation, their comments were significant:

• Counsel may make an oral application for BvL costs during the allocation hearing.
• The application should only be made if allocation is decided against the claimant, but must occur before or at the conclusion of the hearing.
• The Notice of Allocation should include clear wording entitling the claimant to standard-basis costs up to the date of allocation or the date repairs were completed.

This judicial guidance reinforces the strategic importance of the allocation hearing, especially where SP remains live.

Why Birmingham v Lee Still Matters in 2025

Despite misconceptions that BvL has been watered down, nothing could be further from the truth. The principle survives CPR amendments and has been expressly acknowledged in 2025 cases.

The core BvL principle is simple:
Where a tenant reasonably sought SP and litigation was necessary to prompt repairs, the claimant is entitled to recover their reasonable costs up to the point at which repairs are completed, even if the case later becomes suitable for the small claims track.

In effect, BvL ensures that defendants cannot avoid liability for pre-allocation costs by rushing late repairs or pushing for inappropriate SCT allocation.

This is fully consistent with both the County Courts Act 1984 and the Senior Courts Act 1981, which anchor the court’s discretion to award costs in the interests of justice.

Shillito v Sheffield City Council (2025): Fast Track Costs Survive SCT Allocation

In Shillito, the tenant’s claim eventually fell within the small claims track, but the judge nonetheless awarded fast track level costs for pre-repair work. The court accepted that SP was a legitimate remedy until the tenant eventually vacated the property.

Despite the case being allocated to the small claims track, the court recognised that the earlier procedural stage justified fast track allocation and therefore fast-track-equivalent costs were recoverable.

This decision confirms that allocation is not purely about damage value; it is about the case’s nature, complexity, and remedy.

Fishwick v Gentoo Group Ltd (Appeal, 2025): Allocation Must Follow the Pleadings

The Fishwick appeal is even more direct. HHJ Freedman overturned a Small Claims Track allocation and held that the lower court had wrongly focused on post-issue repair activity. Allocation must be based on the pleaded claim, not later defendant strategy.

Key guidance from the appeal:

• Allocation must reflect whether SP is still live.
• The presence of vulnerability factors, including claims involving children or vulnerable adults, may influence track selection.
• Cases involving complex expert evidence, particularly where oral expert evidence at trial may be needed, often justify fast track allocation, allocated to the intermediate track, or in rare cases even the multi track.

The judgment also noted that track decisions should consider whether the claim includes a claim or an asbestos lung disease claim or mirrors the evidential demands of noise-induced hearing loss, both historically treated under Section IV of the Civil Procedure Rules.

This is a powerful tool for challenging inappropriate SCT allocation.

Practical Guidance from Our Practitioners

Fast track allocation is becoming increasingly important in disrepair litigation, and recent cases highlight several practical points.

Use the allocation hearing strategically
Courts are explicitly willing to deal with BvL arguments orally if allocation goes against the tenant.

Secure protective wording in the Notice of Allocation
Cost-preservation language is essential, particularly where repairs are completed just before the hearing.

Rely on the new 2025 authorities
Shillito helps preserve fast-track costs even if damages fall within Small Claims Track value.
Fishwick confirms that courts cannot retroactively downgrade a case based on last-minute repairs.

Highlight complexity where relevant
Where oral expert evidence at trial is required, or where the claim resembles historically complex categories such as noise-induced hearing loss or asbestos-type claims, fast track allocation or even said cases being allocated to the multi or intermediate track is justified.

How Can Greener Costs Help with Fast Track Allocation and BvL Issues?

Greener Costs can support practitioners at every stage of the allocation and costs-recovery process. Our team regularly advises on fast track allocation, BvL-style arguments, and the tactical use of allocation hearings to secure a claimant’s costs position.

We help ensure that cases are presented in a way that properly reflects the pleaded issues, the need for specific performance, and the complexity that justifies allocation beyond the Small Claims Track.

Speak to one of our draftsmen specialising in disrepair today on 01204 263047 or info@greenercosts.co.uk. Whether you require assistance drafting allocation submissions, preparing counsel for an oral application, or challenging an inappropriate SCT allocation, Greener Costs can provide clear, strategic guidance to help you obtain fair costs outcomes in line with the evolving 2025 case law landscape.