What is the Pre-Action Protocol for Construction and Engineering Disputes?
It is a procedure which:
• applies to all construction and engineering related disputes (but with the limited exceptions listed below);
• is to be carried out and completed before the start of court proceedings; and
• requires the parties to provide each other with information about their respective cases.
What are the purposes of the Pre-Action Protocol?
The protocol states that its purposes are:
• to encourage the early exchange of full information about the claim;
• to enable the parties to avoid court proceedings by agreeing a settlement of the claim before they are started; and
• to support the efficient management of proceedings where proceedings cannot be avoided.
When does the Pre-Action Protocol not apply?
The protocol does not apply to claims in court proceedings:
• to enforce an adjudicator's decision;
• relating to (substantially) the same issues which have been the subject of a recent adjudication or alternative dispute resolution procedure such as mediation;
• which include a claim for an injunction;
• in which the claimant proposes to apply for summary judgment; and
• when the proceedings are started just before a limitation period is about to expire.
What are the steps and timetable to be complied with under the Pre-Action Protocol procedure?
The steps and timetable are:
• the claimant's letter of claim;
• the defendant's:-
- acknowledgment of the letter (within14 days of its receipt);
- notification of any objections to the court's jurisdiction or to the party named as defendant (within 28 days of the letter's receipt); and
- response to the letter (again within 28 days of the letter's receipt although the parties may agree an extension up to a maximum of four months);
• the claimant's response to any counterclaim brought by the defendant (with the same time limits as those for the defendant's response to the letter);and
• a pre-action meeting (but note that such a meeting is not obligatory and that there is no stipulation as to when it should take place).
Is what happens during the Pre-Action Protocol procedure confidential?
The documents prepared for the procedure are not confidential and may therefore be referred to during the (subsequent) court proceedings. Indeed the Technology and Construction Court Guide states that the letter of claim and the defendant's response to that letter should normally be included in the documents placed before the judge at the first case management conference.
However, what was discussed at any pre-action meeting is confidential and may not be referred to before the judge unless all the parties who attended agree.
What will the court regard as non compliance with the Pre-Action Protocol?
The judge is unlikely to:
• be concerned with ‘minor infringements’ of the protocol; or
• encourage lengthy debates in respect of complaints as to the precise quality of the information provided by a party. The judge will instead be mainly concerned to ensure that each party to the proceedings at their outset has a clear understanding of the nature of the case it has to meet.
What are the consequences of non-compliance with the Pre-Action Protocol?
The judge may:
• stay (suspend) the court proceedings until the steps in question have been complied with;
• penalise the party who has failed to comply by making an adverse costs order against it; and• exercise ‘any sanctions available so as to place the innocent party in no worse a position that it would have been in had the protocol been complied with’.
Please note: These key points are only intended to give general guidance and are no substitute for specific legal advice on any given situation.