Pre-Action Protocols require parties to give summaries of their cases, and to hold a meeting, before commencing litigation. The Pre-Action Protocol for construction and engineering disputes applies to "all construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors)".

Failure to comply with the protocol can result in costs or interest penalties. In Cundall Johnson and Partners LLP v Whipps Cross University Hospital NHS Trust, Whipps Cross applied for a stay of a claim by an engineer because he had failed to comply with the Pre-action Protocol before suing Whipps Cross for fees. The judge agreed that Cundall had not complied. There had been no letter of claim complying with the protocol. It was not fair to proceed immediately with litigation.

Cundall said that the claim was simply "debt recovery" and not covered by the protocol. The judge disagreed: “In my view, a disputed claim for professional fees made by a firm of consultant engineers falls within the term ‘engineering disputes’ in the context of paragraph 1.1 of the protocol”.

This is a reminder to set out the claim to your opponent before going to court. And if the boot is on the other foot and he forgets, point it out as soon as you can.