Pre-Action Protocol And Conduct Intoduction

Pre-Action Protocol and conduct Intoduction in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]There is a Pre-Action Protocol for Construction and Engineering Disputes. Where the dispute involves a claim against architects, engineers or quantity surveyors, this Protocol prevails over the Professional Negligence Pre-Action Protocol: see paragraph 1.1 of the Construction and Engineering Pre-Action Protocol for Construction and Engineering Disputes and paragraph A.1 of the Professional Negligence Pre-Action Protocol. The current version of the Construction and Engineering Pre-Action Protocol (“the Construction and Engineering Pre-Action Protocol”) is set out in volume 1 of the White Book at section C5. The purpose of the Construction and Engineering Pre-Action Protocol is to encourage the frank and early exchange of information about the prospective claim and any defence to it; to enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings; and to support the efficient management of proceedings where litigation cannot be avoided.

Proportionality

The overriding objective (Civil Procedure Rules rule 1.1) applies to the pre-action period. the Construction and Engineering Pre-Action Protocol must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs. In lower value Technology and Construction Court claims (such as those likely to proceed in the county court), the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Construction and Engineering Pre-Action Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. the Construction and Engineering Pre-Action Protocol does not impose a requirement on the parties to produce a detailed pleading as a letter of claim or response or to marshal and disclose all the supporting details and evidence or to provide witness statements or expert reports that may ultimately be required if the case proceeds to litigation. Where a party has serious concerns that the approach of the other party to the Pre-Action Protocol is not proportionate, then it is open for that party to issue a claim form and/or make an application (see Paragraph 4.1.5 below) to seek the assistance of the court.