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.