Engaging Before Litigating – Changes to the Protocol

14 November, 2016
by: Cripps Pemberton Greenish

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In 2000, the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol) came into force leading to parties being required to fully set out their positions in formal correspondence before meeting to try to resolve the dispute. 


Although the large majority of people would no doubt say that the Protocol has been successful in enabling parties to settle before incurring litigation costs there has been some criticism.  Some say the Protocol forced parties to spend a disproportionate amount of time (and money) at that early stage leading some defendants to use the Protocol for their tactical advantage by unnecessarily extending the process to try to wear claimants out.


The 2nd Edition of the Protocol has now been launched and came in to force on 9 November 2016.  The effect of the updates to the Protocol include that:


  • It is expressly stated that the Court will only in exceptional circumstances impose cost penalties on a party that has failed to comply with the Protocol.  It then goes even further by saying the Protocol must not be used as a tactical device or to generate unnecessary costs.  This should help rebuff canny defendants trying to use the Protocol as a way of dragging out the pre-action process as a claimant can point to these parts of the updated Protocol.
  • In claims of a modest value the Letter of Claim and response can be simple and in all cases the costs incurred should be proportionate to the complexity and value of the claim.  This will give parties more confidence to issue at earlier stages should they want to in order to keep the overall costs proportionate.
  • Previously a potential defendant could by agreement have its deadline for serving a response extended by up to 3  months.  Now, although the parties can still agree to longer periods for compliance no extension shall exceed 28 days.  That will make it tricky in some cases for defendants to respond within the allowed time but as the response now only needs to be a brief and proportionate summary of the defendant’s position this will hopefully be manageable.
  • The parties should now normally aim to meet within 21 days of the potential defendant’s letter of response.  Shortening the timeframe will hopefully keep up the momentum created by the parties exchanging early correspondence setting out their positions.
  • The parties may agree to engage a “referee” (who will not be a Judge) to assist them in participating and complying with the Protocol.  A cost (currently £3,500 plus VAT) will be incurred to use this referee procedure and both parties need to agree to use it so the uptake (at least at first) may not be significant but such a procedure may be useful if the parties disagree on what progress has been made.


Overall the 2nd Edition of the Protocol appears to deal with the main issues raised about the previous edition but the tightened timeframes and referee procedure may lead to other issues becoming more frequent.  We will see what happens!