I have spent some time recently reflecting on dilapidations practice and where the market is at the moment and I’m not sure that I like what I see. What follows is a personal view. It does not represent the views of the RICS or Savills, but hopefully will strike a chord with those of you who derive income from dilapidations to a greater or lesser degree.
So much of what we have focused on in recent years has been based on or instigated by the Civil Procedure Rules. Not altogether unexpected as they apply to all civil disputes, with a few notable exceptions. Lawyers took the opportunity to set out in the PLA Protocol what they were looking for when cases come to them for litigation. That they felt the need to do so should be salutary enough for surveyors as it reflects complaints by the legal profession that lawyers were having significant difficulties presenting documentation prepared by surveyors to the court.
Since then the Protocol has gone through two versions and two RICS Guidance Notes being drafted amid much discussion and debate about subjects like whether we should be forced to be accountable for schedules we prepare and should lawyers be allowed to influence surveying practice. Now, of course, the Protocol is part of the CPR and where the circumstances bite we have to abide by the Protocol. Interesting as those subjects are to some people it strikes me that we really ought to have better things to discuss.
We have a duty to act in a professional manner and the RICS Guidance Notes set the bar in relation to dilapidations. We also have a duty to act for our clients and advise them of our recommendations. There seem to be those who think we are unable to do both which I find as baffling as the concept of only being able to act in the best interest of the client if we fly in the face of the CPR. Clearly preparing an unsustainable claim that will be reduced by 90% with an associated shattering of client’s expectations is not acting in their best interest, but I regularly still see them being prepared.
That professional duty extends to the preparation of the schedules upon which claims are based. As professionals we are expected to advise our clients, and reports and letters containing that advice are signed and in doing so the individual or firm are taking ownership of that advice and accepting liability for it. That is why we carry indemnity insurance. I see no difference in principle between signing a report and endorsing a schedule, but for some reason the whole idea of an endorsement is anathema. I accept that the definition and wording of such an endorsement is crucial and much effort has gone into ensuring that the wording is acceptable to those who will have to sign, but to my mind it is no more than an expression of what we have always been required to do.
We also have a professional duty to ensure that we are sufficiently experienced to undertake the task required by the client. The level of experience required will vary from job to job and there will be cases that do not require the level of skill and expertise that presenting a complicated case to a court will require, but nevertheless we must have an appropriate level of expertise to be able to undertake the task.
Dilapidations is potentially litigious and dispute resolution relating to repairing and decorating lease covenants and obligations to reinstate alterations has evolved out of the murky mists of time and the latest batch of regulations, guidance and discussion is no more than a continuation of that process. Nevertheless, the current system, whilst it works to a degree, is incredibly inefficient, too long and way too expensive. Further, landlords generally feel let down by the system and tenants generally feel mugged. A review of case law shows that these are the same problems people were complaining about when Queen Victoria was on the throne.
The conclusion of my reflections is that rather than creating a lot of column inches and debate over what are actually rather insignificant side issues that go nowhere to improving the system, we should be discussing ways to change the system. To develop a way of dealing with disputes that is fast, efficient and produces results. Documents that are correct, are useable by lawyers if it gets that far and maintain our professional credibility. Clients will pay for that. That is the discussion we should be engaged in.
We have to operate within the professional standards expected of us. We have to be appropriately qualified with the appropriate level of expertise. We have to reflect the regulations and rules that bind us whether written by surveyors or not. We have to act for and advise our clients but also have the integrity to stand before a tribunal and explain the same case. We have to satisfy lawyers that we understand the rules that bind them and can deliver useable product.
In the 123 years since Joyner v Weeks very little has changed. I think it should be changed and I think we can do it.
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