The Pre-Action Protocol for Construction and Engineering Disputes sets certain standards which the parties to a construction dispute or an engineering dispute are expected to observe before Court proceedings are issued. The Protocol encourages the parties to exchange information at an early stage and to consider using a form of alternative dispute resolution.
When does the Pre-Action Protocol for Construction and Engineering Disputes apply?
The Protocol applies to all construction and engineering disputes, including professional negligence claims against architects, engineers and quantity surveyors. However, a Claimant is not required to comply with the Protocol in the following circumstances:
- Where Court proceedings are for the enforcement of the decision of an adjudicator to whom a dispute has been referred pursuant to section 108 of the Housing Grants, Construction and Regeneration Act 1996;
- Where Court proceedings include a claim for an interim injunction;
- Where the Claimant seeks summary judgment pursuant to Part 24 of the Civil Procedure Rules; or
- Where the dispute relates to the same or substantially the same issues as have been the subject of a recent adjudication under the Housing Grants, Construction and Regeneration Act 1996, or some other formal alternative dispute resolution procedure.
A Claimant is permitted to commence Court proceedings without complying with the Protocol if, by reason of complying with it, their claim may be time-barred. In such circumstances the Claimant is required to apply to the Court for directions when he asks the Court to issue proceedings. The Court may in such cases order a stay of the proceedings pending compliance with the Protocol.
What are the requirements of the Pre-Action Protocol for Construction and Engineering Disputes?
The letter of claim
The Claimant is expected to notify the Defendant of his claim by sending to each proposed Defendant (if appropriate to his registered office) a letter of claim prior to commencing Court proceedings.
The Protocol specifies what information the letter of claim should contain.
The Defendant’s acknowledgment of the letter of claim
The Defendant should acknowledge receipt of the letter of claim in writing within 14 calendar days of receiving the letter of claim. If the Defendant is insured he may provide the name and address of his insurer to the Claimant at this stage.
If the Defendant fails to acknowledge receipt of the letter of claim within 14 days the Claimant is entitled to commence Court proceedings without further compliance with the Protocol.
Objections to the Court’s jurisdiction or the named Defendant
The Defendant has 28 days from receipt of the letter of claim to raise an objection on the following grounds:
- That the Court lacks jurisdiction;
- That the matter should be referred to arbitration; or
- That the Defendant named in the letter of claim is the wrong Defendant.
The objection should be made in writing and should specify the parts of the claim to which the objection relates. It should also set out the grounds relied on and, where appropriate, should identify the correct Defendant, if known.
If the Defendant fails to raise an objection at this stage, he is not precluded from raising an objection at a later stage. However, the Court may take such failure into account when deciding the question of costs.
If the Defendant raises an objection he is not required to send a letter of response in relation to the claim or those parts of it to which the objection relates.
The Defendant can withdraw any objection made by him at any stage. Any withdrawal should be in writing. If the Defendant does withdraw an objection before Court proceedings are commenced the parties are required to comply with the Protocol. In such circumstances the letter of claim will be treated as having been received on the date on which the Defendant withdraws his objection.
The Defendant’s response to the letter of claim
The Defendant has 28 days from the date of receipt of the letter of claim to respond in full to it. This period of time can be extended by the consent of the parties up to a maximum of 3 months.
The letter of response should contain the following information:
Which facts set out in the letter of claim are agreed and which are not agreed. Where the Defendant does not agree with the facts set out in the letter of claim, he should explain why he does not agree with them;
Which claims are accepted by the Defendant and which are rejected by him. If the Defendant rejects a claim he should explain why he rejects it;
If the Defendant accepts a claim in whole or part, the letter of response should state whether the damages, sums or extensions of time claimed are accepted or rejected. If they are rejected the Defendant should explain why he rejects them;
If the Defendant alleges contributory negligence against the Claimant, the letter of response should contain a summary of the facts relied on by the Defendant;
Whether the Defendant intends to make a counterclaim. If he does he is required to provide the information required to be given in a letter of claim;
The names of any experts already instructed by the Defendant and on whose evidence he intends to rely, identifying the issues to which that expert’s evidence will be directed.
For more information on:
- The Claimant’s response to any counterclaim raised
- Pre-Action meeting
- Proportionality of costs
- What happens if a party does not act in accordance with the Protocol?