Dilapidations Protocol – Quotes for Surveyors

Since the formal adoption of the Dilapidations Protocol under the CPR, the issue of compliance or non-compliance with the Protocol has been a talking point and a bit of a battle ground in negotiations. The issue has created a lot of “heat” but little “light”. To help cut through this, dilapidations surveyors, in discussions with their opposite numbers on the Protocol, may find it useful to put forward one or more of the following points of principle taken from the CPR and recent caselaw:

“The CPR enable the court to take into account the extent of the parties’ compliance with … a relevant pre-action protocol when giving directions for the management of claims and when making orders about who should pay costs. The court will expect the parties to have complied with … any relevant pre-action protocol. The court may ask the parties to explain what steps were taken to comply prior to the start of the claim. Where there has been a failure of compliance by a party the court may ask that party to provide an explanation.”     [CPR Practice Direction – Pre-Action Conduct, paragraphs 4.1 & 4.2]

“This protocol sets out conduct that the court would normally expect prospective parties to follow prior to the commencement of proceedings … Where the court considers non-compliance, and the sanctions to impose where it has occurred, it will, amongst other things, be concerned about whether the parties have complied in substance with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings.”     [Dilapidations Protocol, paragraphs 1.2 & 1.5]

“Potential parties to litigation embarking on the Pre-Action Protocol … must always remember to consider it in the context of the overriding objective [of saving expenses, proportionality, expedition and fairness]. It must not be used as a weapon or tactic. Both parties must seek to co-operate during its implementation. In relation to low value claims … it is important that the parties proceed reasonably expeditiously, do not drag the process out and keep the costs of the exercise to a reasonable minimum.”     [Higginson Securities (Developments) –v- Hodson (2012), at paragraph 22]

“… [The] Defendant [in this case] was very well aware, before these proceedings commenced, what the nature of the claim was against it. It did not know every detail … but it knew in substance and it was able to deal with it in substance. The Defendant was able to work out what its defences were in some detail. The Defendant was given every opportunity to attend meetings to discuss matters and to settle the disputes. The Court should be slow to allow the rules to be used in those circumstances for one party to obtain a tactical or costs advantage where in substance the principles of the Protocol have been complied with.”     [TJ Brent –v- Black & Veatch Consulting (2008), at paragraph 45]

“… The Court should avoid the slavish application of individual rules, practice directions or Protocols if such application undermines the overriding objective … [The Pre-Action Protocol process] is recognised as being effective both in settling disputes before they even arrive in the Court and narrowing issues but also as being costly on occasion and enabling parties to delay matters without taking matters very much further forward … Whilst the norm must be that parties to litigation do comply with the Protocol requirements, the Court must ultimately look at non-compliances in a pragmatic and commercially realistic way. Non-compliances can always be compensated by way of costs orders.”     [Orange Personal Communications Services –v- Hoare Lea (2008), at paragraph 31]

Milton McIntosh

Milton is a Consultant Property Litigation Solicitor with Excello Law. Milton deals with all aspects of real estate disputes, including the full range of landlord and tenant matters. Milton has particular expertise in dilapidations, being a former member of the RICS Dilapidations Working Group and involved in the writing of previous editions of the RICS Guidance Note on Dilapidations. Milton advises clients and writes regularly on the area of dilapidations.