The court has attempted to reduce the burden on its resources by introducing various Pre-Action Protocols. There is a Pre-action Protocol for Construction and Engineering Disputes (the Protocol) which sets out the procedures that the court would expect the parties to the dispute to have followed before issuing proceedings. The Protocol applies to all construction disputes (including professional negligence claims against architects, engineers and quantity surveyors.)
The Protocol process can also assist parties to engage in early and meaningful settlement discussions so that (if possible) settlement can be agreed before the costs of litigation are incurred.
If the Protocol is not followed the claim may be “stayed” for a period of time to enable the parties to do so and/or the party failing to comply with the Protocol may face adverse cost consequences. The Protocol encourages the parties to exchange information at an early stage and to consider using a form of Alternative Dispute Resolution.
The Protocol’s objectives are:
- To encourage the exchange of early and full information about the prospective legal claim
- To enable parties to avoid litigation by agreeing a settlement of the claim before commencement of proceedings, and
- To support the efficient management of proceedings where litigation cannot be avoided
The Protocol process is as follows:
- A detailed letter of claim
- An acknowledgement within 14 days
- A detailed response and details of any counterclaim within 28 days
- If there is any counterclaim, a response to that counterclaim within 28 days
- A “Pre-Action Meeting” should then take place within 28 days
If matters are still not resolved proceedings may be issued or Alternative Dispute Resolution, including mediation considered.
It is important that the Protocol is complied with before proceedings are issued to avoid the risk of adverse costs. TSP can help you to comply with the Protocol and this process often results in settlement of the claim without having to go to court.
If you are involved in a construction dispute and need advice please do contact the TSP Dispute Resolution team here.