Many questioned whether the previous incarnation of the Pre-Action Protocol for construction and engineering disputes (the “Protocol”) was fit for purpose. There were some vociferous calls for it to be scrapped. In a detailed consultation by the Technology and Construction Solicitors' Association ("TeCSA") the general consensus was that the Protocol was still a useful tool for the effective management of construction disputes – but there was clear room for improvement.
Therefore, TeCSA and the Technology and Construction Bar Association ("TECBAR"), with the support of the Technology and Construction Court ("TCC"), updated the Protocol to encourage proportionate pre-action conduct. At its launch on 2 November 2016 Mr Justice Coulson, now the Judge in Charge of the TCC, praised the collaboration between the professional organisations and reiterated that the Protocol remained an important pre-action tool.
The objectives have now been redefined and are less prescriptive. There is now a focus on a proportionate approach being taken by the parties such as the exchange of “sufficient information”. The aim is to assist the other party to “broadly understand" the case against them. This is reflected in the requirements for the letter of claim which only need include a “brief summary of the claim”. Notably, the Protocol states that it is not expected that expert reports are provided with the letter of claim. This is all aimed at reducing the volume of information within the pre-action exchanges, which will ultimately help to reduce costs.
What else has changed?
Substantive changes include:
- the ability to opt out by agreement (although the parties may still have to comply with the Practice Direction for Pre-Action Conduct)
- tighter timeframes for compliance so that extensions are not permitted to exceed 28 days in the aggregate. This gives a clear backstop date should one party attempt to delay the process.
- the introduction of a new Protocol Referee Procedure. This will allow the parties to opt in to a process to address any non-compliance with the Protocol. The Protocol Referees will be drawn from a panel comprised of senior TeCSA and TECBAR members. A modest fee will be charged for the service. The decision of the Protocol Referee will be binding until finally determined by legal proceedings or agreement. The Court shall give due weight to any decision of the Protocol Referee but shall not be bound by it.
- confirmation that it is likely to be only in exceptional circumstances, such as flagrant or very significant disregard for the Protocol, that the Court will impose cost consequences.
A brave new world or much of the same?
Concerns over costs and protracted communications were a significant issue for all parties. The revised Protocol addresses those concerns and should provide a cheaper and quicker process which assists the parties in avoiding litigation. The introduction of the Protocol Referee Procedure will hopefully keep issues of non-compliance in check.
There is very clear judicial support for the new Protocol and it is testament to the power of collaboration as it could not have been achieved without TeCSA and TECBAR working closely together.
We will have to wait and see the impact of the revised Protocol on the early resolution of disputes. However, there is no doubt that the process has been revitalised and provides a clear, accessible and proportionate tool for all those resolving construction disputes.