The New Pre-action Protocol Has Come Into Force

The Pre-Action Protocol for Construction and Engineering Disputes ("the Protocol") first came into force some 16 years ago. Following consultation between TeCSA, TECBAR and the judges who deal with construction disputes, a new updated Protocol came into force on 14 November 2016. The revised Protocol introduces some interesting changes, but first it is worth recalling the purpose behind the introduction of the Protocol.

What is the Protocol?

The Protocol applies to all construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors). There are some exceptions where parties will not be expected to comply with the Protocol before commencing proceedings, for example where there may be an issue with limitation or where the claim is in respect of enforcement of an adjudicator's decision, or arises out of matters that have recently been the subject of an adjudication.

TeCSA Survey

TeCSA sponsored a major piece of research with Acuigen to evaluate the perceived value of the Protocol which is undoubtedly a major tool to achieve the aims of Lord Justice Jackson presented in the Review of Civil Litigation Costs Final Report. The TeCSA study contained in the Acuigen report published in January 2016 shows that:

95% of respondents thought that the Protocol was a valuable pre-action mechanism; 87% believed that it is creating access to justice; 49% suggested amendments to make the Protocol more effective; of very real significance for clients, of the 677 disputes that were subject to the Protocol, 277 disputes, or 41%, settled without the need for formal proceedings; such an outcome was one of the key aims of the Jackson reforms and a key point TeCSA felt was often overlooked by the judiciary in the "ones that got away". The purpose of the Protocol

The primary purpose of the Protocol is to "encourage the exchange of early and full information about a prospective legal claim" and thereby increase the chances of the parties avoiding litigation by agreeing a settlement. In cases where litigation cannot be avoided, the Protocol supports the efficient management of proceedings. Interestingly, the TeCSA Survey showed that almost all respondents agreed with the first statement and only half of the respondents agreed that the Protocol supports the efficient management of proceedings.

Enforcing the Protocol

When determining costs the courts will take into account the conduct of the parties...