Revised Pre-Action Protocol For Construction And Engineering Disputes
Keeping the Good, Leaving the Bad
A revised Pre-Action Protocol for Construction and Engineering Disputes came into force on 9th November 2016.
The new Protocol was launched jointly by TeCSA and TECBAR on 2nd November 2016 at the Rolls Building, with Mr Justice Coulson, Judge in Charge of the Technology and Construction Court (TCC), giving the keynote speech.
The original Pre-Action Protocol was passed 16 years ago and many believe a revamp of the process has been long overdue. The ethos behind the first Protocol was to encourage an early exchange of information in order to facilitate a prompt settlement. Over recent years, practitioners have noted regular abuse of the process; for example, claimants bombarding the proposed defendants with information and incurring a disproportionate level of costs before commencing proceedings. Parties have often ended up in a secondary dispute over whether the Protocol has been adequately complied with.
However, despite some criticism, the Protocol has over the years resulted in a significant number of cases to settle, saving clients time, stress and money, as well as freeing up the resources of the TCC.
The aim of the revised Protocol is to simplify the procedure enabling parties to gain a sufficient understanding of the claim in order to facilitate an early settlement at a reasonable cost.
The key changes to the Protocol include:
- Parties can now agree to ‘contract out’ of the pre-action protocol
- Costs sanctions will only be imposed for flagrant or significant breach of the pre-action protocol
- The Pre-Action Protocol is shorter and should be less expensive for parties to implement. For example, it directs that parties should normally meet 21 days (rather than 28 days) after the letter of response
- The Pre-Action Protocol has a greater focus on the issue of proportionality
- The introduction of a Protocol Referee Procedure
The Protocol Referee Procedure
Both parties may agree for the Protocol Referee Procedure to apply to their dispute. Either party may then apply to the Chairman of TeCSA for the nomination and appointment of a Protocol Referee.
The application fee is £3,500 plus VAT*.
The applicant and the respondent must respectively set out the direction they desire and a response to this proposed direction. These documents must comprise of no more than four sides of an A4 sheet.
*As at the time of writing.
The Protocol Referee must reach a decision no later than 10 working days after the receipt of the appointment. The decision should set out any appropriate directions for future conduct of the Protocol process; and/or whether there has been non-compliance with the Protocol and, if so, whether the non-compliance demonstrated a, “flagrant or significant disregard for the terms of the Protocol”, and if so, to what extent.
The Referee’s decision is binding and must be complied with until the legal proceedings are concluded. The Court shall give due weight to the Referee’s decision but it is not bound by it.
The revised Protocol seems to have struck a good balance between keeping the best of the former process and doing away with overly-complex procedures that were open to abuse. Whether or not the Protocol Referee Procedure is utilised by many claimants remains to be seen; given the hefty application fee and the simplification of the new Protocol, it is likely to be engaged only for disputes involving large sums of capital.
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