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A draft pre–action protocol for terminal dilapidations claims (prepared by the Property Litigation Association with input from the Royal Institution of Chartered Surveyors) has been circulating since spring 2002. Finally, on 6 April 2012, after much discussion and consultation, it was adopted as a formal pre–action protocol under the Civil Procedure Rules, with effect from 1 January 2012. Its official name is the "Pre–Action Protocol for claims for damages in relation to the physical state of commercial property at the termination of a tenancy (the 'Dilapidations Protocol')".
The Dilapidations Protocol aims to govern how parties should liaise with each other (and conduct themselves) when dealing with dilapidations claims prior to any court proceedings being issued, for example setting out the type of information which should be exchanged between and disclosed by the parties and a reasonable timetable for consideration of such evidence.
As with all CPR pre–action protocols, sanctions may be imposed where a party fails to comply with the new Dilapidations Protocol. While the courts will probably be reluctant to penalise minor breaches which do not prejudice the opposing party, they are likely to take into account any serious non–compliance by either party, and the consequences may include staying or suspending the court proceedings, or making an adverse costs order against the non compliant party. Landlords and tenants should therefore ensure that they comply with the new Dilapidations Protocol from the outset to avoid what could be serious consequences in the event of non compliance, regardless of the merits of the landlord's claim.
Lauren King, Associate in Property Litigation Group at Field Fisher Waterhouse LLP.