The TCC has made it clear that any parties failing to comply with the spirit as well as the letter of the Pre-Action Protocols will face serious costs consequences when and if the dispute reaches court.

In Bovis Homes Ltd v Kendrick Construction Limited [2009] EWHC 1359 (TCC), the TCC made it clear that the Pre-Action Protocol for Construction and Engineering Disputes requires both parties to exchange fully their views not only on the substance of the underlying dispute but also on the procedure to be adopted in seeking to resolve it. The court concluded that a defendant who:

  • does not request a copy of the contract documents during a Pre-Action Protocol process
  • who knows that the contract incorporated a standard form that contains an arbitration agreement
  • who has no reason to believe that agreement has been amended or deleted; and
  • who has expressly considered the possibility of arbitration

cannot just wait to see if the claim will be continued without saying anything about the possibility that a stay of proceedings may be requested. Such conduct is not in accordance with either the spirit of co-operation required by, or the detailed provisions of, the Pre-Action Protocol. For example, paragraph 4.2.1 of the Protocol requires a statement of any jurisdiction or arbitration points to be made at an early stage and provides for costs to be awarded where compliance with the Protocol does not occur.

To read the judgment, go to: http://www.bailii.org/ew/cases/EWHC/TCC/2009/1359.html