Construction & Engineering Disputes
Pre-Action Protocol for Construction and Engineering Disputes
With certain exceptions steps have been put in place to control the way in which construction disputes, including professional negligence claims against architects, engineers and surveyors, are brought to court in the UK. These are set out in the Pre-Action Protocol for Construction and Engineering Disputes. The objectives include encouraging the early full exchange of information to facilitate out of court settlements.
A substantial failure to comply with the protocol may cause a case, which was capable of being settled, to go to court. This may put the noncompliant party at a disadvantage, particularly when it comes to award of costs.
What is required under the pre-action protocol varies from case to case. It is not intended to be a means for one party to secure an advantage and the scope of pre-action procedures should be proportionate to the complexity and value of the case. The Protocol requires clarity and the exchange of sufficient information to make the dispute clear but it does not require the parties to disclose all the supporting evidence that may ultimately be required if the case proceeds to litigation.
The aim is to ensure that, before court proceedings commence, all parties have had the opportunity to consider the others’ cases and to accept or reject all or any part thereof as early as possible. Part of this involves exchange of documents and part a meeting or meetings to clarify the issues. The intention is to encourage settlement by agreement or, where this fails, to optimize the efficiency of the proceedings.
The pre-action protocol, although strictly applying to litigation only, has sometimes extended by agreement to arbitrations. This suggests its usefulness is recognised by lawyers experienced in construction litigation. The way in which it is interpreted and applied, however, varies widely. In many cases clarification of a claim or defence has to be requested repeatedly. One such case involves a claim against two designers and one builder. The pre-action procedure having run for months, the claimant has still not identified which defects are claimed to be the responsibility of the engineer, and which the architect and which the builder. The result is to frustrate the purpose of the protocol. Proposals to meet and mediate are discussed but until the claim is clarified it is difficult to see what benefit can be gained by meetings or mediation. To date little more has happened than the submission of questions to the claimant, which have not been answered. Costs are mounting and the protocol is proving ineffective entirely due to the ongoing failure to properly formulate the claims.