In our original article from February of this year headed "A Pragmatic Approach To The Pre Action Protocol", we highlighted Mr Justice Akenhead's comments in the case of Orange Personal Communications Services Ltd v Hoare Lea [2008] EWHC 223, where he had to consider the approach to take when faced with an application to stay proceedings in order for the Pre Action Protocol for Construction & Engineering Disputes ("the Protocol") to be followed. As we said, he decided that the correct approach to take was a pragmatic one.
Mr Justice Akenhead has now further clarified what he means by the adoption of a pragmatic approach to the Protocol. These comments came in the case of TJ Brent Ltd & Anr v Black & Veatch Consulting Ltd [2008] EWHC 1497
The dispute between the parties related to damage caused by an oil leak in a pipe. Black & Veatch ("B&V") had been employed by Southern Water as a consulting engineer in respect of the work whilst Brent and A J Loveland Thames Ltd, the second claimant, were employed as contractors at Southern Water's supply works in Andover, Hampshire, where the problem is said to have arisen. Southern Water made a claim against the claimants who made their own claims for contribution against B&V. Proceedings were eventually issued and in the lead up to a mediation, B&V alleged that Brent had failed to comply with the Protocol.
In many respects, the facts of the case do not really matter. Of more importance are the comments made by Mr Justice Akenhead about this type of application. First of all, in response to criticisms made of Brent's Letter of Claim, the Judge said that there was no need for the Letter of Claim to provide information in "ultimate detail" unless it was critical to the claim. The court should ask whether the absence of information was such as to prevent or make it difficult for a defendant to respond in detail:
"What the Court should do in considering the Pre-action Protocol is to look at the matters in substance, not as a matter of semantics... and not for technical non-compliances with the letter of claim requirements in the Pre-action Protocol."
Here the Letter of Claim, provided a clear summary of the facts on which the claim was based and identified so far as possible the principal contractual terms and statutory provisions relied on as well as the nature of the relief claimed.
The Judge also commented on the time taken by B&V to raise their complaints about the alleged failure to comply with the Protocol. Whilst he accepted that it was not incumbent upon a defendant as a matter of practice or procedure to have to raise the issue of the Pre-action Protocol process once the Particulars of Claim were served, the delay here, some 7 months had passed, served to undermine the stance taken in the application.
Further, Mr Justice Akenhead commented that is was not enough to demonstrate that there had been a failure to comply with the Protocol. A party making such allegations also had to demonstrate the effect of such failure. For a defendant to succeed in this type of application, it would have to establish that there was some realistic prospect, prior to the issue of the proceedings, of:
(i) a mediation taking place; and
(ii) some prospect (but no certainty or even necessarily probability) that a resolution of the disputes between the parties would be achieved.
A court would need to consider what would have happened if there had been an attempt at alternative dispute resolution during the period when the Protocol process would have taken or did take place. Not only must a court consider whether there had been non-compliance, it must also consider the extent to which the failure to follow aspects of the Protocol might have prevented a resolution of the dispute. The onus of proof is on the defendant to show that a settlement would or could realistically have been achieved at that stage. In this case, B&V's unwillingness to attend any meetings or discuss any matters without prejudice in any forum, suggested to the Judge that settlement was unlikely.
Mr Justice Akenhead also referred back to his earlier decision in Orange v Hoare Lea) where he made it clear that the Overriding Objective was concerned with saving expense, proportionality, expedition and fairness and where he said:
"The court should avoid the slavish application of individual rules, practice directions or protocols if such application undermines the overriding objective."
In the Orange case, he made a number of other observations, which culminated in the comment that:
"Whilst the norm must be that parties to litigation do comply with the Protocol requirements, the Court must ultimately look at non-compliances in a pragmatic and commercially realistic way. Non-compliances can always be compensated by way of costs orders."
Conclusion
Adopting that pragmatic approach to the facts of the present case, it was clear to the Judge that here, in substance, B&V was very well aware, before these proceedings commenced, what the nature of the claim was against it. It did not know every detail but it knew in substance and it was able to deal with it in substance. Therefore B&V was able to work out what its defences were in some detail. The Judge cautioned that a court should be slow to allow the rules to be used in such circumstances for one party to obtain a tactical or costs advantage where in substance the principles of the Protocol have been complied with.
Accordingly, the application failed.
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