07 February 2012 #Dispute Resolution
For some years’ the “Pre-action Protocol for claims for damages in relation to the physical state of commercial property at termination of a tenancy” – better known as “the Dilapidations Protocol” has been followed imperfectly (if at all) by landlords, tenants, surveyors and solicitors. The Dilapidations Protocol was first produced by the Property Litigation Association in 2002 and subsequently went through a number of revisions. Although those involved in dealing with claims for breaches of repairing and related covenants in leases recognised it to be a guide to good practice it did not have binding force – until now.
With effect from 1 January 2012, however, the latest version of the Dilapidations Protocol has been annexed to the section of the Civil Procedure Rules which details the conduct expected of parties before they start legal proceedings. This means that, for the first time, anyone involved in a dilapidations claim who fails to follow the Dilapidations Protocol runs a serious risk of adverse costs orders and other consequences should that failure not be justified. It is therefore now more important than ever that those involved in such disputes are familiar with – and follow - the Dilapidations Protocol in preparing and pursuing dilapidations claims.