The Dilapidations Protocol has been made and came into force on 1 January 2012. The material will appear on the CPR website shortly in the preview section, and be incorporated in the consolidated version on the common commencement date 6 April 2012.
Reasons for changes
The CJC and Rule Committee have made various changes to the Protocol so that it complies with their general criteria for protocols. These are that protocols:
- Should not include law
- Should not be repetitious of the Practice Direction – Pre Action Conduct (PDPAC)
- Should not express themselves in different language from other protocols and rules
What has changed?
The word ‘serve’ has been replaced with the word ’send’ throughout as serve has connotations elsewhere in the CPR. Similarly the landlord’s ‘claim’ has been replaced by the landlord’s ‘quantified demand’ to differentiate it from a formal claim under the CPR. The timings have been rationalised so that they are consistent i.e. all ‘within’ certain periods rather than some ‘within’ some ‘from’ etc. It has also been made clear that ‘surveyor’ includes ‘any other suitably qualified person’. Are general guidance and should be kept as short as possible.
Landlord’s and tenant’s endorsement
The wording of the landlord’s endorsement has been altered slightly, firstly to reflect the judicial comments in PGF II SA v Royal & Sun Alliance Insurance PLC 2010 EWHC 1981 (TCC) to make it clear that it is the landlord’s intention at the end of the term that we are concerned with (not thereafter) and to provide for the case if the landlord itself gives the endorsement. The wording is set out below. This also reflects the fact that the surveyor is relying on what he has been advised is the position by the landlord.
It is the intentions of the actual landlord that are referred to. This includes whether the landlord intends to demolish the building or if there are any supersession issues e.g. the surveyor cannot sign the endorsement to say that ceilings need to be repaired if he knows the landlord will take them out to change the lighting.
The only substantive change to the Protocol is the introduction of an endorsement by the tenant’s surveyor. The tenant’s surveyor should not seek to go in at a lower cost that he honestly believes is the case, or to take out works that he considers actually should be done. The tenant’s surveyor is, however, answering the landlord’s claim and does not have to point out other items that may need to be done if they have not been required by the landlord. The wording of the tenant’s surveyor’s endorsement is set out below.
There is one area where the Protocol does overlap with the PDPAC. This is in the reference to where the court is looking at sanctions for non-compliance with the Protocol. It was felt very strongly by the RICS that there should be specific reference to this, and the fact that
where the court is considering this point it will 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 and technical shortcoming’. This has been emphasised because both the PLA and RICS have heard anecdotal evidence that some surveyors are relying on minor technical breaches of the protocol to argue that the other side cannot pursue its case. If a landlord serves his schedule a week after the recommended time scale that does not mean that he can no longer bring a claim. The issue of compliance will go to costs/other sanctions at the end of the day. There was also some discussion as to whether the Protocol should deal with the question of costs. However, the view of all parties involved in the drafting was that this is an issue for the trial judge at the end of the matter. He will take everything into account and make a decision.