The Pre-Action Protocol for Construction and Engineering Disputes sets out what should be included in a letter of claim for a construction or an engineering dispute. A letter of claim is the document in which the claimant first sets out the nature of their complaint against the defendant and the redress they are seeking.
The Pre-Action Protocol for Construction and Engineering Disputes (‘the Protocol’) applies to all construction and engineering disputes, including professional negligence claims against architects, engineers and quantity surveyors. However, a claimant does not have to comply with the Protocol in the following circumstances:
- Where the claim is for the enforcement of an adjudicator’s decision where the dispute has been referred to it under section 108 of the Housing Grants, Construction and Regeneration Act 1996
- Where there is claim for an interim injunction
- Where summary judgment is sought under Part 24 of the Civil Procedure Rules, or
- Where the dispute relates to the same or substantially the same issues that have been the subject of a recent adjudication under the 1996 Act (or some other formal alternative dispute resolution procedure)
In addition, a claimant can start formal court proceedings without complying with the Protocol if their claim would otherwise be time-barred (ie. where the limitation period during which proceedings should be issued has expired). However, the claimant should apply to court for directions when proceedings are to be issued. The court may then order a ‘stay’ of proceedings to enable the parties to then comply with the Protocol.
What are the requirements of the Protocol?
The letter of claim should be sent to the defendant/s (the registered office where appropriate) and should contain the following information:
- The full name and address of the claimant
- The full name and address of each proposed defendant.
- A clear summary of the facts on which each claim is based
The Protocol stipulates what should be included, but it should be kept simple.
The basis of the claim
The letter of claim should explain the basis of each claim made claim. This should include identifying the main contractual terms and statutory provisions relied on.
The remedies sought
The letter of claim should state what remedies the claimant is seeking. Where damages are claimed, the letter of claim should include a breakdown showing how the damages have been calculated.
If a lump sum is claimed under a contractual provision, the letter of claim should explain how the claimant has calculated the sum.
If the claimant seeks an extension of time, the letter of claim should state how long a period is required.
Claims made previously and rejected by a defendant
If the claimant has previously made a claim which has the defendant has rejected, but the claimant is able to identify the reason or reasons for such rejection, the claimant should state on what grounds they believe the claim was wrongly rejected by the defendant.
The letter of claim should also state the names of any experts already instructed by the claimant on whose evidence they intend to rely. However, the Protocol does not expressly require expert evidence. Where experts have been instructed, the claimant should identify the issues to which that evidence will be directed and which explains the claimant’s position.