Construction Pre-Action Protocol

What Are The Essential Ingredients Of the Construction and Engineering Pre-Action Protocol? in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]

The Letter of Claim

The letter of claim must comply with Section 3 of the Construction and Engineering Pre-Action Protocol. Amongst other things, it must contain a clear and concise summary of the facts on which each claim is based; the basis on which each claim is made; and details of the relief claimed, including a breakdown showing how any damages have been quantified. The claimant must also provide the names of experts already instructed and on whom he intends to rely.

The Defendant’s Response

The defendant has 14 days to acknowledge the letter of claim and 28 days (from receipt of the letter of claim) either to take any jurisdiction objection or to respond in substance to the letter of claim. Paragraph 4.3.1 of the Construction and Engineering Pre-Action Protocol enables the parties to agree an extension of the 28 day period up to a maximum of 3 months. In any case of substance it is quite usual for an extension of time to be agreed for the defendant’s response. The letter of response must comply with section 4 of the Construction and Engineering Pre-Action Protocol. Amongst other things, it must state which claims are accepted, which claims are rejected and on what basis. It must set out any counterclaim to be advanced by the defendant. The defendant should also provide the names of experts who have been instructed and on whom he intends to rely. If the defendant fails either to acknowledge or to respond to the letter of claim in time, the claimant is entitled to commence proceedings.

Pre-action Meeting

The Construction and Engineering Protocol is the only Protocol under the Civil Procedure Rules that generally requires the parties to meet, without prejudice, at least once, in order to identify the main issues and the root causes of their disagreement on those issues. The purpose of the meeting is to see whether, and if so how, those issues might be resolved without recourse to litigation or, if litigation is unavoidable, what steps should be taken to ensure that it is conducted in accordance with the overriding objective. At or as a result of the meeting, the parties should consider whether some form of alternative dispute resolution (“Alternative Dispute Resolution”) would be more suitable than litigation and if so, they should endeavour to agree which form of Alternative Dispute Resolution to adopt. Although the meeting is “without prejudice”, any party who attended the meeting is at liberty to disclose to the Technology and Construction Court at a later stage that the meeting took place; who attended and who refused to attend, together with the grounds for their refusal; and any agreements concluded between the parties. (See also above in relation to claims brought by claimants based ouside the UK).