The Second Edition of Pre-Action Protocol for Construction and
Engineering Disputes where the Claimant's intention is to issue
proceedings in the Technology and Construction Court ("the
Protocol") came into force on 14 November 2016.
The original protocol, like other pre-action protocols came into
force with the aim of resolving disputes before they came to Court;
it required the parties to follow a set procedure before
instituting proceedings, including a timetable for the claiming
party to write a letter of claim, to which the defending party was
required to respond. Uniquely among the various protocols, the
construction and engineering protocol also provided for a
The protocol started to attract criticism, as practitioners felt
that it had led to the front loading of litigation costs and was
being used by some defendants as a tactical way of delaying a
claim, with claimants often facing threats of high cost orders in
the eventual action if they had not complied with the long
timetable envisaged by the Protocol. This was especially
frustrating to those in the construction industry, accustomed to
the speed of adjudication, but who had a legal issue to be resolved
for which the court process was more appropriate. With this in
mind, following a number of reports and surveys from various
interested stakeholders, the second edition was drafted by
construction practitioners (rather than the court rules
The new edition seeks to address some of the criticisms of its
predecessor, and therefore envisages a shorter pre-action protocol
period and crucially states that "only in cases of
flagrant or very significant disregard for the protocol, will the
court impose cost consequences for non-compliance"
(paragraph 4). The key changes are as follows:
The parties may consent not to use the Protocol (paragraph
The aggregate maximum extension to any period set in the
Protocol is 28 days (paragraph 10).
The deadline for a Defendant to respond to a Letter of Claim
remains at 28 days, subject to a 28 day extension, but it is no
longer open for parties to agree to a 3 month extension of this
timetable (paragraph 8.5).
The Claimant's response to a Defendant's Letter of
Claim is set at 21 days (rather than being allowed a corresponding
extension to the Letter of Response) (paragraph 8.7).
The meeting is no longer mandatory, with the Protocol stating
that the parties should "usually" meet within 21 days of
the Letter of Response (or Response to Counterclaim) (paragraph
The Protocol envisages briefer, less detailed Letters of Claim,
Letters of Response and Responses to Counterclaim than previously,
with a number of references to this approach in the new Protocol
(paragraphs 3, 6, 7, 8.5 and 8.7).
There is a new requirement for the Defendant to refer to any
party which it is considering submitting to the Protocol process
The Protocol ends automatically on the conclusion of the
Pre-Action Meeting, or 14 days after such meeting should have been
held (paragraph 10).
There has been the introduction of a new Protocol Referee
Procedure (paragraph 11).
The Protocol Referee Procedure is a completely new part of the
protocol, allowing parties to appoint a Referee, who has a
procedural role overseeing compliance with the Protocol; including
reviewing allegations of non-compliance, making directions for the
parties and cost orders regarding non-compliance that will be
persuasive to judges in the action. At a cost of Ł3,500
payable by the losing party if the case progresses to court, it is
cheaper than mediation. It is hoped that by assisting the parties
to engage with the pre-action process in a meaningful way, the
Referee will aid faster resolution of more cases. Time will
It remains to be seen, how the new protocol will work and in
particular whether the Referee will prove a useful tool for
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.
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