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In construction or engineering projects, where many parties, such as your business, contractors and architects, are involved, disputes may arise. For example, you could disagree on the level of service a building contractor provides your business with. Where you have exhausted all of your dispute resolution options and are looking to litigate, you must first follow mandatory steps prior to starting a proceeding in court. This article will explain the pre-action protocol for construction and engineering disputes.
What is a Pre-Action Protocol?
A pre-action protocol is a practice direction set out in the Civil Procedure Rules. It explains what you must do if you are part of a dispute and are considering resolving the disagreement with court proceedings. It details specific procedures you must follow.
Generally, there are different types of pre-action protocols depending on the nature of the dispute. As a business owner, different types of conflicts you may come across are:
- defamation claims;
- professional negligence; and
- construction and engineering disputes.
Each of these have specific pre-action protocols you should comply with. Below, we explain this process for construction and engineering disputes in more detail.
What is the Purpose of a Pre-Action Protocol?
Pre-action protocols are in place to reduce the chance of litigation in a commercial dispute. They ensure that the parties to a dispute have taken all reasonable steps to avoid court proceedings. Pre-action protocol also:
- encourages parties to a dispute to exchange information as soon as possible so each understands the other’s issues;
- aids parties in agreeing on an early settlement of the dispute; and
- where litigation goes ahead, ensures that court proceedings are managed efficiently.
You must comply with any relevant pre-action protocol, as the court will consider this during your dispute and can apply various sanctions. These include:
- paying additional costs as the party is not following the protocol; and
- a reduction of any costs award if you are awarded costs.
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What is the Pre-Action Protocol for Construction and Engineering Disputes?
As with other pre-action protocols, the one for construction and engineering disputes governs the conduct between parties before embarking on litigation. It should only be used if your commercial dispute concerns construction or engineering. Therefore, it would be relevant in conflicts with:
- building contractors;
- engineers;
- architects; and
- quality surveyors.
What is the Pre-Action Protocol’s Timeline?
The protocol for construction and engineering disputes has a specific protocol timeline guideline. However, parties to the conflict can extend this if they agree. This is as follows:
- On the first day, the party making a claim (the claimant) serves a pre-action protocol letter of claim on the other party.
- The other party (the defendant) must acknowledge receipt of this letter within 14 days.
- The defendant must then ensure they serve a letter of response on the claimant within 28 days of service of the letter of claim, or if the issue is complex, as a general rule, they are allowed up to three months to do so.
- Providing the defendant makes no counterclaim, parties will attend a pre-action meeting.
- If the defendant does serve a counterclaim, the claimant must serve a response on day 49 of the procedural timeline.
Once parties to the construction or engineering dispute have carried out this timeline procedure, it is expected that they will either:
- settle the dispute;
- agree on an alternative method to litigation to resolve the disagreement; or
- initiate court proceedings if the dispute cannot be resolved.
This guide outlines how to resolve commercial disputes.
Key Takeaways
A pre-action protocol is a legal rule that details the procedures you must follow if you are part of a commercial dispute and are considering litigation. It details what you must do before issuing a claim. The purpose of a pre-action protocol is to try to avoid court proceedings and resolve the issue another way and early on in the dispute. When you are in a construction and engineering dispute, you should:
- ensure you are following the relevant pre-action protocol, as they differ depending on the nature of the dispute;
- comply with all steps involved to avoid court sanctions; and
- follow the specified procedural timeline.
If you need help understanding the pre-action protocol for construction and engineering disputes in the UK, LegalVision’s experienced disputes and litigation solicitors can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Pre-action protocol is a legal rule detailing the procedures to follow before a claim is issued. It covers a range of unique types of conflicts, including engineering or construction disputes.
Parties can agree to extend the timeline guideline in the reaction protocol for construction and engineering disputes.
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