UK: Just How Detailed Do Pre Action Protocol Letters Need To Be?

Last Updated: 16 October 2007
Article by Jeremy Glover

As you will almost certainly know, a revised Pre Action Protocol for Engineering and Construction Disputes ("the Protocol") came into effect on 6 April 2007.1 Already this year, there has been one case, Charles Church Developments Ltd v Stent Foundations Ltd & Peter Dann Ltd, [2007] EWHC 855 (TCC), before the courts, where Mr Justice Ramsey, who has recently taken over as the head judge at the Technology & Construction Court had to consider the consequences of failing to comply with the Protocol.2

A similar question recently came before Mr Justice Jackson in the case of Cundall Johnson and Partners LLP v Whipps Cross University Hospital NHS Trust [2007] EWHC 2178 (TCC).

In 2000, Whipps Cross University Hospital NHS Trust ("the Trust") set out to redevelop Whipps Cross Hospital in Leytonstone. Cundall Johnston and Partners LLP ("CJP") provided engineering services to the Trust in respect of two of the preliminary projects. The first project was for enabling works and the second was for the construction of a new energy centre ("the EC Works"). CJP claimed that it was owed outstanding professional fees on both projects.

In respect of the enabling works, in March 2006 CJP sent a letter to the Trust requesting payment of five invoices totalling Ł305,571. The parties’ solicitors entered into correspondence and the Trust requested details of CJP’s appointment documentation to verify the unpaid invoices. CJP did not produce this documentation and subsequently alleged that there was an oral contract. CJP requested a meeting. The Trust unsurprisingly requested proper details of the oral contract and refused to meet in the absence of these details. In August 2007 CJP commenced proceedings to recover the fees.

In respect of the EC works, in July 2006 the Trust made a claim against CJP intimating negligent design. In October 2006, CJP responded with a claim for outstanding fees. After some debate between the parties concerning the entitlement to adjudicate, CJP commenced proceedings to recover the outstanding fees.

The Trust considered that CJP had not set out its case properly in pre-action correspondence and therefore applied to the Court for a stay of the proceedings commenced by CJP on the basis that CJP had failed to comply with the Protocol.

There were three issues before the Judge:

  1. Does the Protocol apply to claims for professional fees or debt collection?;
  2. Did CJP comply with the Protocol?; and
  3. Should the Court exercise its discretion to grant a stay for non-compliance with the Protocol?

In a comment of some importance, Mr Justice Jackson noted that

"The Protocol sets out a procedure for the exchange of information between the parties followed by a meeting. Neither the letter of claim nor the defendant’s response are required to resemble pleadings either in their length or in their detail. What is required from each side is a clear and concise summary of their respective cases."

He reinforced this by noting that as a consequence of the concern that had been expressed in some quarters that the Protocol could be used in an oppressive manner, a new paragraph 1.5 had been added to the Protocol which made it clear that both parties must take a proportionate response. Paragraph 1.5 states as follows:

"The overriding objective (CPR r.1.1) applies to the pre-action period. The Protocol must not be used as a tactical advice to secure advantage for one party or to generate unnecessary costs. In lower value claims (such as those likely to be proceed in the county court) the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. The Protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation".

Mr Justice Jackson stressed that the intention of the changes to the Protocol was this:

"If both the letter and the spirit of the Protocol are complied with, many disputes can be resolved at proportionate cost without the need for proceedings. Furthermore, disputes which are litigated can be more sharply focused at the outset."

In the case here, it was accepted that CJP’s claim for additional fees in respect of the EC project did fall within the Protocol. There was, however, a dispute between the parties concerning the enabling works. CJP said that the claim for fees did not fall within the scope of the Protocol; it was simply a matter of debt recovery. Mr Justice Jackson disagreed. A disputed claim for professional fees made by a firm of consultant engineers falls within the term "engineering disputes" in the context of the Protocol. The mere fact that it could be characterised as debt collection did not take it outside the scope of paragraph 1.1 of the Protocol. Indeed it was of note that "debt recovery" was not one of the specified exceptions in paragraph 1.2 of the Protocol.

The Judge then considered the question of a stay. He felt that it was clear that CJP had not complied with the Protocol. In particular, in relation to the enabling works, the contractual basis of CJP’s claim remained "obscure until proceedings were issued". In other words, CJP’s lawyers had not sent out a claim which complied with the requirements of paragraph 3 of the Protocol. Had they done so, the basis of the contractual claim would have been clear. With the EC project, CJP’s solicitors had forwarded a copy of their expert report to the Trust’s solicitors. The Judge accepted that this was "helpful" but said that this in itself was not sufficient to comply with the requirements of paragraph 3 of the Protocol.

There were therefore 3 reasons why the Judge thought that it was appropriate to order a stay:

  1. Having considered all the correspondence, and listened to the submissions of counsel, he believed that there was "a real possibility of settlement" if the parties went through the Protocol process;
  2. Therefore, a stay would be in the best interests of both parties. It may lead to a saving in costs and bring about an earlier resolution of the dispute between the parties;
  3. It was unfair on the Trust to proceed immediately with litigation, when a proper summary of the claim had not been notified in advance.

The case was therefore stayed for approximately 10 weeks.


The answers to the questions raised by the Judge were these:

  1. The Protocol does apply to claims for professional fees. There is no exclusion, in any event, in the Protocol for debt recovery;
  2. CJP failed to comply with the Protocol; and
  3. The consequence was that the court ordered that there by a 10 week stay.

The Judgement is particularly interesting because Mr Justice Jackson made it clear that he does not expect that letters of claim and responses be so sophisticated as to resemble pleadings. This represents a welcome re-statement of the original principles of the Protocol. However the courts will still expect parties to set out their positions in a clear and concise manner. If they do not, the Court may well exercise its discretion to stay proceedings in order that the parties comply. And do not forget that this may, in the end, result in adverse cost consequences for the party in default.

This article is based on an article from a forthcoming issue of the Fenwick Elliott Dispatch, a monthly newsletter which summarises recent key developments relating to contentious and non-contentious construction law issues. To see the current issue please visit


1 Are You Ready For The New Construction Pre-Action Protocol? - 15 March 2007

2 Paying The Price Of Failing To Comply With The Pre Action Protocol – 10 May 2007

To see further articles on matters relating to construction, engineering and energy projects, please visit

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jeremy Glover
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.