A Revised Dilapidations Protocol

The Law Reform Committee has yet again reaffirmed a commitment to adopt and encourage the use of protocols and forms of alternative dispute resolution to resolve potentially litigious disputes.

The Committee has been working on a revised version of the Property Litigation Association’s (PLA) protocol for dilapidation claims for some time with a view to adopting a formal dilapidations protocol under the Civil Procedure Rules (CPR).

The process of adoption under the CPR continues but, in the meantime, the PLA and the Royal Institute of Chartered Surveyors (RICS) have agreed to release the revised protocol to practitioners.

Much of the original PLA protocol has been preserved but significant additions have been made in relation to definitions, the question of Alternative Dispute Resolution (ADR) and quantification of claims.

The new protocol imports definitions for ‘Dilapidations’, ‘repair’, ‘reinstatement’, and ‘redecoration’ and preserved reference to the overriding objectives set out in part 1 of the CPR and the protocol practice directions. The overriding purpose of the protocol is to improve pre-action communication between Landlord and Tenant and thereby help them make informed judgements on the merits of their cases.

The mechanics of the protocol remain the same. The Landlord serves a letter of claim with schedule annexed within a ‘reasonable time’, which is now specified as 56 days from the date of expiry of the Lease. A response must be served with 56 days of receipt. Guidance is given as to the content of both the claims letter / schedule, the response and disclosure.

The Landlord and Tenant and / or their respective professional advisors are encouraged to meet on a without prejudice basis following exchange of their claim and response, preferably on site and within 28 days of service of the Tenant’s response.

By far the greater addition to the new protocol concerns ADR. The parties must consider ADR and a robust warning given that if the protocol is not followed then the court must have regard to such conduct when determining costs.