Pre-Action Protocol for Construction and Engineering Disputes, 2nd Edition
November 2016 saw the launch of the revised Pre-Action Protocol for Construction and Engineering Disputes, 2nd Edition (the "Protocol"), jointly prepared by The Technology and Construction Solicitors Association (TeCSA) and The Technology and Construction Bar Association (TECBAR). The original protocol was introduced in October 2000 (later revised in 2007) in order to try and resolve disputes without litigation so far as possible. Over the years, it was identified by many that the protocol frontloaded costs for the parties and substantially increased the time and cost of proceedings, by requiring parties to carry out work in the protocol phase that would then be duplicated after proceedings were issued.
In line with the overriding principle of the Civil Procedure Rules, the clear emphasis of the new Protocol is for a simpler, more efficient and cost-effective process. To achieve this, the Protocol has been amended so that the parties now need to provide "sufficient" rather than "full" information "for each party to know the outline nature of the other's case". The Protocol also encourages proportionality with the complexity of the case, seeking to avoid costs racking up unnecessarily. This includes modifying the requirements for the Letter of Claim to contain a "brief summary" of the claim; removing the requirement for a detailed Response by the defendant and instead providing for a "brief and proportionate summary... and, if the Defendant intends to make a Counterclaim, a brief summary of the Counterclaim"; broadening the requirement to keep the letter of claim simple and the costs of both sides modest from lower value claims to "many cases, including those of modest value"; confirming that the use of experts is not expected unless "succinct and central" to the claim; removing the previous requirement, following a pre-action meeting, to agree how unresolved issues are defined.
The parties can expressly agree in writing to not comply with the Protocol or agree flexibility for compliance. There is also a new protocol referee procedure, which the parties can agree to utilise for a fee of GBP 3,500 plus VAT, introduced "for the purposes of assisting the parties in participating in and complying with the Protocol".
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