Construction and engineering disputes may be managed more efficiently in future following the introduction of a revised pre-action protocol.

Time limits have been shortened, paperwork simplified and an independent referee introduced.

The revised pre-action protocol for construction and engineering disputes came into force on 14 November.  It sets out the steps parties should take before starting court proceedings and updates a number of the requirements of the previous protocol:

  • Parties will now only need to set out a summary of their claim, rather than complete details
  • Both sides can agree to opt out of the protocol if they wish
  • Time limits have been reduced and parties can only ask for a maximum 28 day extension
  • A new referee procedure has been introduced to resolve disputes about the protocol

“By reformulating and simplifying the requirements of the protocol – for example, limiting the volume of information exchanged between the parties to ‘brief summaries’ which are ‘proportionate’ to the nature and value of the dispute – the updates should allow for a more streamlined and efficient pre-action process,” said Benjamin Smith of law firm Pinsent Masons.

The new protocol has been developed by the Technology and Construction Bar Association (TECBAR) and the Technology and Construction Solicitors’ Association (TeCSA).

“The new protocol is intended to help speed the resolution of construction and engineering disputes and therefore help to reduce cost,” said James Burgoyne, Director – Claims & Technical, Brunel Professional Risks.  “But it is likely to be a two edged sword in practice. If the claimant has a genuine claim and is acting reasonably, the changes are likely to be to everyone’s benefit. However abuse of the previous protocol has been a problem where a claimant made a speculative claim and refused to provide substantive details. Worryingly, the new protocol has reduced the requirements of claimants even further. As such, the effect when coupled with the extremely short timescale for the defendant’s response may simply be insurers advising claimants that they wish to opt out of the PAP process altogether,, and therefore a return to a “put up or shut up” approach to legal proceedings – the very thing the pre-action protocols were originally seeking to change.”

Reports on the new protocol have been published by law firms CMS, DAC Beachcroft and Pinsent Masons.  The full protocol is available on the TeSCA website.