Pre-action protocol for construction & engineering disputes largely unchanged following the Civil Justice Council’s review

What happened?

On 15 November 2024, the UK’s Civil Justice Council (the CJC) concluded its review of the pre-action protocols, publishing part two of its final report. This follows the publication of the interim report in November 2021, and part one of the final report in August 2024.

In this final entry of the review, the CJC makes recommendations for reforms to the pre-action protocols. The CJC made various recommendations to specific pre-action protocols, but largely left the pre-action protocol for construction and engineering disputes alone.

What is the pre-action protocol for construction and engineering disputes?

The pre-action protocol for construction and engineering disputes governs parties’ conduct before the issuing of court proceedings. It does not apply where the parties refer a dispute to adjudication (as to which, see our overview here).

The aim is to encourage parties to a dispute to set out their respective cases and exchange sufficient information in order that they understand each other’s position. This, in turn, allows the parties to try to narrow the issues in dispute and try to have sensible discussions for settlement of those issues.

Its success is one of the reasons why the vast majority of construction disputes settle prior to the commencement of formal proceedings. We deal with an overview of methods of Alternative Dispute Resolution for construction disputes here.

What does the pre-action protocol for construction and engineering disputes currently involve?

You can access a copy of the pre-action protocol by following the link here [https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_ced], but for a brief summary, you can refer to the information  below.

• Day 1: The claimant will serve a letter of claim, containing the information required under the pre-action protocol (such as the parties involved, the contractual or statutory provisions that the claimant is relying upon, details of the relief claimed, identification of any proposed experts and confirmation of whether they wish to call upon the protocol referee procedure)
• By day 15: The defendant should acknowledge receipt of the letter of claim
• By day 28: The defendant should serve a letter of response, with details of their defence, proposed experts, and counterclaim (if there is one in contemplation)
• By day 49: The claimant should serve a letter response to the counterclaim
• By the date that is 21 days after the final letter of response, the parties should then attend a pre-action meeting where they discuss the issues in dispute – trying to reduce or narrow those issues – and try to achieve a settlement.

If no settlement is achieved at the pre-action meeting, or no meeting is held 14 days after the date on which it should have been, the pre-action protocol comes to an end and the claimant will often issue proceedings to commence court action.

Within certain parameters, it is open to the parties to amend these deadlines, and reasonable extensions will usually be agreed, depending on the circumstances of the dispute.

What does the CJC’s review mean for the protocol?

Broadly speaking, the CJC was satisfied that the pre-action protocol for construction and engineering disputes is generally working well in practice. This view is shared by most practitioners of construction disputes (particularly given its non applicability to adjudications).

The main areas of consideration by the CJC, and its conclusions, were as follows:

• Consideration was given to whether to align the time limits for responding to the pre-action letter of claim to those suggested for the general pre-action protocol (14 days, with a right to extend for a further 28 days to obtain further information). The CLC concluded the current timeframes should be maintained
• It was concluded that the protocol referee procedure (though seldom used in practice) should be maintained
• Engagement with the pre-action protocol for engineering and construction disputes should be mandatory subject to limited exceptions (including the right to opt out by mutual consent)
• On the basis that the current without prejudice meeting fulfils that function already, no new distinct “stocktake” process needs to be implemented
• There should be minor changes to the wording of the protocol to make reference to the courts’ powers to penalise the parties in costs/stay proceedings for non-engagement with the protocol.

Summary

Whereas other pre-action protocols have been subject to recommendations for some significant changes, the CJC’s review has found the construction protocol to be in good shape with no need for any significant overhaul.

If  changes are implemented based on the CJC’s current recommendations, they are unlikely to be substantial and will typically follow the advice that lawyers have been providing their clients since the introduction of this protocol, in any case.

What remains is that, if you wish to send, or have received, a letter of claim sent under the pre-action protocol for construction and engineering disputes, you should contact one of our team who will be glad to assist.