The Dilapidations Protocol: ignore at your peril
The Dilapidations Protocol (‘the Protocol’) is a formal pre-action protocol under the Civil Procedure Rules 1998. The aims of pre-action protocols are the early exchange of information and negotiations to resolve a dispute without having to engage in Court proceedings.
The Protocol establishes a reasonable process and timetable for the exchange of information. And it sets standards for:
- The content and quality of schedules and Quantified Demands
- The conduct of pre-action negotiations
The Court will now impose costs sanctions for non-compliance.
Recent examples of the Court’s approach
Hammersmatch Properties (Welwyn) Ltd -v- Saint-Gobain Ceramics & Plastics Ltd (2013)
The Court held that the failure of Saint-Gobain to follow the Protocol reinforced the case for an Order for costs against it.
Had Saint-Gobain made its case on liability and quantum earlier (to include provision of its expert evidence), it would have allowed Hammersmatch to consider Saint-Gobain’s Part 36 Offer at an earlier stage.
Courtwell Properties Ltd -v- Greencore PF (UK) Ltd (2014)
The Court considered the parties compliance with the Protocol when considering the Claimant’s application for indemnity costs.
Both parties had not followed the Protocol. And there was a lack of co-operation between the parties due to the respective experts falling out.
The Court made it clear that the parties must act in a proportionate way at all stages of the litigation to include compliance with the Protocol.
Key points to remember
- Best practice dictates the following of the Protocol
- Maintain meticulous records to prove the case and compliance with the Protocol
- Following the Protocol may see an early resolution – if not, it will avoid any costs sanctions imposed by the Court
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