Last week the Civil Procedure Rules Committee approved the
Property Litigation Association's Pre-Action Protocol for
Terminal Dilapidations Claims for formal adoption into the
Civil Procedure Rules. It will join the small number of
existing pre-action protocols and is likely to come into force as
of 1 January 2012 although formal confirmation of this date is yet
to be received.
The effect of the adoption of the Protocol is that, whilst no party
can be forced to follow its provisions in their pre-action conduct,
in the event that they do not do so, the Court will examine the
reasons behind the failure. Unless there is a good reason for doing
so, it will be within the Court's discretion to make an adverse
costs order against the guilty party whether or not that party is
the successful party in the claim. It is not anticipated that
slight deviations from the letter of the Protocol will result in
such adverse orders, but any flagrant disregard of the Protocol is
likely to be viewed negatively by the Courts.
Whilst the final document is yet to be released, we understand that
it remains largely the same as the protocol which has been
informally in use for some time. However, we know of one
substantive change, being that the tenant's surveyor will now
be required to endorse his response to the landlord's claim and
certify that in his opinion the works he has suggested are those
reasonably required to put the premises into the condition required
and that any costs quoted for such works are reasonable. This
change has been made to ensure that there are similar obligations
on the tenant's surveyor in relation to the response to the
claim as those on the landlord's surveyor when preparing the
claim. The landlord's surveyor has been required for some time
to provide a similarly-worded endorsement.
Once the final wording of the Protocol has been released and an
effective date confirmed, we will issue a further Law-Now.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 20/10/2011.
