On 23 October 2012 Hogan Lovells hosted a lively debate organised by the Property Litigation Association (PLA) to mark almost one year since the Dilapidations Protocol was formally adopted into the Civil Procedure Rules. Its adoption followed 10 years of effort by the PLA with the endorsement and cooperation of the RICS and the Property Bar.
The Hon. Mr Justice Akenhead and Guy Fetherstonhaugh QC joined the Chair of the RICS Dilapidations Forum, Jon Rowling, and Jacqui Joyce, one of the authors of the Protocol, for the “Question Time” debate before a packed house.
Take up of the Protocol has been very positive: over 85% of practitioners follow the spirit, if not the letter, according to the PLA’s recent survey. Over 60% said that formal adoption meant they were now more likely to use the Protocol – a surprising result for something that has been around for over a decade. It may be too early to say whether the outcome of dilapidations claims will also change; 66% say settlement is no more likely and nearly 70% say claims are no less costly.
Are the courts to blame? A whopping 90% of practitioners felt judges should take it upon themselves to force parties to follow the Protocol’s steps or else penalise them in costs. However, Akenhead J said it was unlikely that the courts would take the initiative and intervene for non-compliance, a stance illustrated by the meagre 3% of practitioners who had experience of the courts doing just that. The Technology and Construction Court (TCC) guidelines do not even refer to the Protocol, although the Judge – who heads up the court – acknowledged that this needed to change. Whilst some members of the panel felt that the courts should be stronger when it came to compliance, Jon Rowling warned against the Protocol being used as a stick to beat smaller firms with.
On the issue of whether a surveyor has the duties of an expert witness or is merely an advisor to one of the parties at the Protocol stage, Guy Fetherstonhaugh quoted Lord Neuberger:
“there is nothing in the CPR, either expressly or in its spirit, which imposes on an expert an obligation to be honest in any negotiations into which he enters with the other side…[and their duty is] to the court in the context of the proceedings, not to the other party to the litigation outside the actual proceedings”.
The QC commented that the requirement in the Protocol for a surveyor to confirm that the landlord’s actual intentions for the property had been taken into account when bringing a claim was flawed and “utterly irrelevant” in law. Jacqui Joyce countered that openness and honesty should be encouraged, regardless of the legal niceties.
The debate finished with the panel’s thoughts on ADR, with Akenhead J recommending mediation or the TCC’s early neutral evaluation service. It was “horses for courses”, he said. The same could be said for the Protocol itself. Some like the structure and clarity it provides, whilst others – to coin another phrase – called it a “weapon to slow things down”.