The pre-action protocol for construction and engineering disputes was originally launched 16 years ago and has now been reviewed and revised from 9th November 2016.
One regular criticism of the protocol has been the time and cost involved in full compliance early and full information needed to be exchanged was excessive and was a hurdle to obtaining justice. The revised protocol still focuses on the exchange of information and now limits it to sufficient information to allow the other party to understand its points and make informed decisions about settlement and how to proceed.
Indeed, if both parties agree in writing they can opt out of the protocol altogether.
The letter of claim
The letter of claim in response can be simple and the costs of both sides kept on a modest level. The letter of claim should now contain a brief summary which is proportionate to the claim. The general aim is to allow the parties to settle cases early and inexpensively without recourse to litigation. Experts’ reports are no longer required or expected. The timetable for compliance with this new protocol has been reduced and the parties should have an early meeting which can then take the form of ADR such as mediation.
The protocol finishes at the end of the pre-action meeting or 14 days after the date on which that meeting should have taken place which reduces the overall time of the protocol.
Interestingly it is likely to be only in exceptional circumstances such as a flagrant or significant disregard of the protocol will the courts impose costs consequences for non- compliance.
As expected, as is now the case, costs proportionality and the resolution of a dispute without court proceedings are emphasised. A new protocol referee procedure has also been introduced for the purpose of assisting the parties in participating in and complying with the protocol. These will be senior counsel not judges to help the parties through the procedure.
In summary a welcome and overdue revision of the construction protocol which shifts the emphasis to give brief but cost effective information to try and resolve construction disputes which lessens the front loading expensive process and moves away from full information to be exchanged to sufficient information being exchanged to allow the parties to make informed decisions and avoid litigation.
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