Pre-Action Protocol for Construction and Engineering Disputes

Pre-Action Protocol

What is Pre-action Protocol in Construction?

If you choose or have no other choice in your dispute but to take the matter to Court, the Court requires all construction and engineering disputes including professional negligence claims to follow the "Pre-action Protocol for Construction and Engineering Disputes 2nd Edition".

You do not have to take part in the Pre-action protocol where ADR (Adjudication, Arbitration, Mediation, etc) is started, it only applies to court proceedings.

The Protocol is a timetable and set of guidelines and rules to be followed and completed before any court proceedings commence. It can take up to three months to complete. The Protocol exists as the Court seeks to encourage parties to resolve their dispute without the need for using the Courts time and to provide more efficient case management. If you do not comply with the Protocol or ignore it and carry on to Court, the Court will look at adverse legal cost arguments against you for failure to take part.

Exemptions to complying with the Protocol include enforcement of adjudicators decisions given under the Construction Act; claims for interim injunctive relief; summary judgement applications or if the claim is the same or substantially the same as issues in a recent adjudication or other formal ADR process, in other words final determination.

In brief, the Protocols objective is to make each party exchange sufficient information so that each party understands each others position and if possible narrow down the issues or encourage a settlement by the use of ADR and at least one meeting between the parties.

The process starts with a Letter of Claim that sets out the detailed claim of the Claimant and that is then responded to by the Defendant with a defence and/or counterclaim. The Claimant may then reply to any counterclaim thereafter. The Protocol sets out a timetable between the exchanges and in theory everyone will have a clear position on each of the parties positions. A meeting must then take place and the Protocol ends at that point and court proceedings may commence.

Arbicon can assist in the process of Pre-action Protocol by compiling all claims with years of construction expertise, setting out the best possible position and managing any ADR process as we are experts in construction ADR. We would in the process seek, for example, adjudication or mediation by agreement.

If you would like to find out if you need to be engaged in the Pre-action Protocol process and would like assistance in dealing with such please use our contact form or call one of our offices.