Civil Procedure Rules and the Dilapidations Protocol

An important precept of the CPR was that it should reduce the number of disputes that resulted in court proceedings. This would reduce the burden on the court system, making it more efficient and available to those who had genuine disputes that required the court’s intervention. The CPR attempts to achieve that by the provisions concerning costs and making offers to settle.

When the court considers the question of liability for the costs of dealing with litigation, among other things it will reflect on whether or not the parties to the dispute have adhered to any relevant pre-action protocol.

The introduction of Pre-Action Protocols was an entirely novel element of the CPR. With their own Practice Direction, a Pre-Action Protocol is intended to be a statement of understanding between legal practitioners and others about pre-action practice and which are approved by a Practice Direction.

The purpose of Pre-Action Protocols is to focus the attention of litigants on the desirability of resolving disputes without litigation; to enable them to obtain information they reasonably need in order to enter an appropriate settlement; to make an appropriate offer (of the kind which can have costs consequences if litigation ensues); and, if pre-action settlement is not achievable, to lay the ground for expeditious conduct of the proceedings.

In effect, litigation is to be viewed as a last resort and parties are expected, having regard to the various drivers and obligations contained in the CPR, to explore alternatives to court proceedings and to explore thoroughly before issuing proceedings the possibility of settlement.

There are a number of Pre-Action Protocols that have been approved by a specific Practice Direction but there is also a ‘general’ Practice Direction – Pre-Action Conduct setting out what might be described as the minimum steps that one ought to take when initiating a claim (and by that we do not mean commencing court proceedings).

Since it was thought that claims for damages for dilapidations at the end of a lease were an area in which there was some misunderstanding as to how claims should be quantified and were reasonably frequently exaggerated, the Property Litigation Association, working with the dilapidations panel of the RICS, produced a Pre-Action protocol for claims for damages in relation to the physical state of commercial property at the termination of a tenancy (referred to here as the Dilapidations Protocol) which has now been formally adopted. The 7th edition of the RICS Dilapidations guidance note follows the Dilapidations Protocol as adopted.

Practical implications

Always bear in mind that the requirements of the Dilapidations Protocol are in addition to those of the CPR. Comments regarding the exchange of information are particularly relevant. At no point should information be withheld that may assist in the determination of the dispute (See Practical implications of CPR for dilapidations surveyors).

Again surveyors need to be very clear exactly what their role and responsibilities are, whether as an adviser or an expert (see Role of the surveyor, Surveyor as an adviser and Surveyor as an expert).
More specifically, for surveyors acting for either landlords or surveyors, the starting point is the consideration of the ramifications of making the endorsement (see 3.5, 3.6, 5.4 and 5.5 of the Dilapidations Protocol and 8.4 and 8.6 of the Dilapidations guidance note (7th edition) for more information).

Timeliness is a key factor and the Dilapidations Protocol sets out that a terminal dilapidations claim (together with the schedule) should be served within a ‘reasonable time’ of the lease ending, which it suggests will generally be not more than 56 days after the end of the lease. Following this, the Dilapidations Protocol states that the tenant must respond to the claim again within a reasonable time, usually 56 days. Surveyors should ensure that their claims and responses adhere to this time frame unless there is very good reason for not doing so.