Alternative Dispute Resolution

Transcription

1 Martin Burns BA (Hons) LL.B (Hons) Barrister RICS, Head of ADR Research & Development Pre-Action Protocol for Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (The 'Dilapidations Protocol') 1

2 The 'Dilapidations Protocol Included in the Court Rules since 1st January 2012, and is the law in England & Wales Aim is to: Ensure a claim is reasonable and understandable Facilitate settlement and avoid court proceedings Where litigation cannot be avoided, facilitate efficient management of the process The 'Dilapidations Protocol The protocol is quite clear and unavoidable. This means it should be used in all claims for damages for breaches of tenants repairing obligations, at the expiry of the lease term. The courts treat the Protocol as the normal and reasonable approach to pre-action conduct. Non-compliance could result in sanctions e.g. in costs orders It is essential that surveyors, landlords and tenants understand and adhere to the protocol 2

3 The 'Dilapidations Protocol 8.1 (Summarised) The parties should explore alternative methods to resolve the dispute that will avoid the need for litigation If an ADR method would be more suitable than litigation, the parties should use it Both the landlord and the tenant may be interrogated by the Court to assess the extent to which they have explored/used ADR Litigation should be a last resort. The court will take into account the extent of the parties compliance with this protocol when making orders about who should pay costs (See CPR rule 44.3(4) and (5)(a)). 3

4 RICS Dilapidations ADR Working Party Christopher Sullivan (Chair) Ed Shaw Tony Harris Dellah Gilbert Patrick Siese Martin Burns (RICS) Hannah Lambert (RICS) To educate and inform the market about the use and benefits of the RICS Dispute Resolution Service for Dilapidations Disputes To promote the understanding and use of conflict resolution techniques in the dilapidations sector, and to coordinate initiatives to educate and inform decision makers in the UK market of the value of these techniques and how to access and use them 4

5 Inform and educate the market about the Dilapidations Disputes Service The objective is for the service is be recognised across the sector as: a key method for resolving dispute quickly and cheaply a key source of specialist dispute resolution practitioners an accessible service which guarantees high levels of knowledge, professional standards and integrity Role and responsibilities Identify key audience/s in government, industry and the legal sector (i.e. who do we need to influence and inform about ADR? Develop a route to market strategy that enables RICS to communicate and persuade key audiences to use ADR Identify the needs of key audience/s and produce targeted and relevant messages to include: Producing information for users of DR in the dilapidations sector (including information and marketing collateral) - Contacting and meeting key government, industry and legal partners -Writing content for social media and direct marketing collateral 5

6 Principles and application of RICS ADR service The Dilapidations Protocol requires parties to consider and use ADR The RICS Dilapidations Scheme is a viable ADR method designed specifically for dilapidations disputes Under the Scheme, an Independent Expert will investigate and reach a quick and informed decision Parties need not instruct professional experts, but can if they wish When parties sign up to the Scheme, and one Party subsequently fails to co-operate, the Independent Expert may still reach a binding decision If the parties cannot agree who will be their Independent Expert, then s/he would be independently appointed by the President of RICS on the application of either party What we would like you to tell us: How often have issues with landlords/tenants led to disagreements, and how were they resolved? How much do you spend on dealing with disputes/conflict situations? How do you currently manage disputes? To what extent is it important to avoid a dispute from damaging business relationships and reputations? What is your appetite for using dispute avoidance/resolution procedures, compared to using litigation? Answers to: hlambert@rics.org 6

7 Martin Burns BA (Hons) LL.B (Hons) Barrister RICS, Head of ADR Research & Development 7