The TCC has recently confirmed that the courts will take a pragmatic approach to the application of the Pre-Action Protocol for Construction and Engineering Disputes.
The claimants claimed against the defendant architect for alleged overcharging, work not carried out and professional negligence in the construction of nine flats and a new Spiritualist Church on the Isle of Wight. The defendant denied the claim. When the claimants issued proceedings the defendant applied to stay the proceedings on the grounds that the Pre-Action Protocol had not been exhausted as a without prejudice meeting had not been held in accordance with paragraph 5.1 of the Protocol.
The court rejected the application, noting that:
- whilst it is important to follow the Pre-Action Protocols in order to achieve the overriding objective of enabling the courts to deal with cases justly, adherence is not mandatory if the overriding objective can be achieved through alternative means;
- the Protocol should not be used as a "weapon or tactic" and in low value claims it is important that the parties do not prolong the process unnecessarily and keep costs to a reasonable minimum;
- the Protocol does not make a pre-action meeting between the parties mandatory, but it does state that "normally" a meeting should take place. This should be seen as the default option and usually if one party asks for a meeting then it should take place.
Comment
The decision demonstrates that, particularly in low value claims, the courts will take a pragmatic approach to compliance with the Pre-Action Protocol and parties are expected to co-operate in its implementation. A pre-action meeting is not mandatory although it will normally take place and is the "default option". For low value claims, it is important for the parties to keep the costs of the pre-action stage to a reasonable minimum.
To re-emphasise the point, the recalcitrant defendant was ordered to pay both his own costs and those of the claimant arising from the failed application to stay.
In a relatively low value case, such an award for costs will be felt keenly.
Further reading: Higginson Securities (Developments) Limited and Another v Hodson [2012] EWHC 1052 (TCC)
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The original publication date for this article was 09/07/2012.
