Cutting through the legalese: Pre-Action Protocol for Construction & Engineering Disputes

The Pre-Action Protocol for Construction & Engineering Disputes (“PAP”) is a set of procedural requirements that are a pre-requisite to commencing litigation.  There are a number of other, more general protocols but the PAP applies to all construction and engineering disputes including professional negligence claims against engineers, architects and quantity surveyors.  (It is worth noting that whilst there is a Pre-Action Protocol for Professional Negligence, the courts have confirmed that the construction element is what is relevant so the Construction & Engineering PAP is the correct one for professional negligence claims construction professionals). 

The PAP is generally aimed at encouraging settlement (using alternative dispute resolution), and if settlement cannot be achieved, narrowing the issues in dispute which make for a more efficient and cost-effective court process. The PAP recognises that parties cannot be forced to enter into ADR, but the parties are required to consider it and the court may require them to provide evidence that ADR has been considered.

The requirements of the PAP are set out below:

• The claimant serves letter of claim on the defendant (which must contain certain key pieces of information);
• The defendant has 14 days to acknowledge receipt and 28 days from the date of the letter of claim to serve a letter of response/counterclaim;
• If the letter of response contains a counterclaim, the claimant has 28 days to respond, if not, the parties are to engage in without prejudice meetings to try and reach settlement.
• If settlement cannot be reached, or the defendant does not comply with the time frames the claimant can issue proceedings.

If limitation is a concern and proceedings have been issued, the claimant must apply to the court for directions as to the timetable and form of procedure to be used. It is likely the claim be stayed so the parties can comply with the protocol retrospectively.

If a party does not act in accordance with the PAP there may be costs consequences if the matter is taken to court. The court has a wide discretion when it comes to awarding costs and will take into account the conduct of the parties what making their award.

In conclusion, it is up to the parties to enter into PAP, while they are not forced to, it is in the best interests of all of the parties involved and will avoid cost consequences should the matter get to court.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.