A new edition of the Pre-Action Protocol for Construction and Engineering Disputes comes into force today.

Whilst the earlier Protocol has generally been viewed as a valuable tool, there have been various criticisms about its effectiveness, including the time taken to respond to claims, the lack of pre-action enforcement mechanism and the costs associated with compliance.

The new edition seeks to address these issues as follows:

  1. Whilst the Protocol is not voluntary, the parties can now agree to opt out.

  2. The Letter of Claim requirements have been modified so that only a brief and proportionate summary of the claim and relief sought is needed; an expert report is no longer expected or required.

  3. The Letter of Response is still due to be issued by the potential defendant within 28 days but this can only be extended by a further 28 days. Again it should only be a brief and proportionate summary.

  4. Time limits have been shortened and the parties cannot agree to extend any deadlines beyond 28 days in the aggregate.

  5. The Protocol introduces a new regime which is currently referred to as the Protocol Referee Procedure. The procedure involves the appointment of an independent referee from TECBAR or TeCSA at a fixed cost of £3,500 plus VAT to regulate compliance with the pre-action process. This is an entirely contractual procedure which the parties will need to agree to adhere to. It therefore remains to be seen if a party who fails to engage meaningfully with the Protocol will nevertheless still agree to submit to the appointment of a Protocol Referee.

  6. The court can only impose cost sanctions for non-compliance in exceptional circumstances, such as a flagrant or very significant disregard for the terms of the Protocol.

View the full amendments to the Pre-Action Protocol, the new Protocol and the accompanying Protocol Referee Procedure here.