The RICS has published the findings of a legal review of its Dilapidations Guidance Note conducted by leading silk and EG columnist Guy Fetherstonhaugh QC.
The review was commissioned by Gary Strong, RICS’ director of practice standards and technical guidance, in response to ongoing discussion among its members regarding the statement’s alleged conflict with the PDPAC Protocol and “extra-curial judicial commentary.”
In a 35-page opinion, Fetherstonhaugh drew the following conclusions:
“It may be fraudulent for surveyors to exaggerate their claims when acting on behalf of landlords (and the converse when acting for tenants), while ultimately settling for much lower (higher) figures than claimed, but only where the degree of exaggeration is dishonest.
Surveyors instructed on a dilapidations case prior to the onset of litigation are not subject to any of the courts’ rules and procedures unless and until they are instructed to provide evidence in ongoing litigation. At that stage, their previous conduct may be brought into account in any orders for costs.
Surveyors accepting instructions to act as expert witnesses (as opposed to non-litigation experts) in dilapidations cases are prohibited from acting on a contingency fee basis.
The PDPAC Protocol should take precedence to the PLA Protocol where their provisions are in conflict, although it is likely that the PDPAC Protocol will soon be repealed.
The guidance on cost recovery set out in the Dilapidations Guidance Note is correct.
Consideration should be given to a system by which amendments or updates to the Dilapidations Guidance Note can easily be made to reflect or refer to current procedure.”
