Pre-action protocols are an important feature of the litigation landscape that promotes early resolution of disputes before court proceedings commence. What are these protocols, how do they work in practice, and what should you do if you find yourself facing a dispute where the pre-action protocol applies?
What are pre-action protocols?
Pre-action protocols set out steps parties should take before issuing court proceedings for certain types of claims, including construction and engineering disputes. They require the parties to explain their positions in detail early on to encourage resolution without needing to go to court.
Even where a dispute does end up in court, following a protocol can still provide benefits, such as narrowing the issues and agreeing on efficient procedures.
Compliance with applicable protocols is mandatory. If a party does not follow a protocol that applies to their dispute, they risk sanctions from the court, such as cost orders or damages reductions. So, it is crucial to understand these protocols and comply with the obligations.
How do pre-action protocols work in practice?
In a construction dispute, the protocol requires the claimant to send a Letter of Claim setting out details of the issues in dispute, the basis for the claims, losses suffered, and outcome sought.
The defendant must respond within 28 days with a Letter of Response addressing the claims and providing their position. If the defendant makes a counterclaim, the claimant must reply within 21 days.
The parties should normally have at least one without-prejudice meeting within 21 days of the Letter of Response to seek a settlement. They must also consider options like mediation or appointing a joint expert.
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What Should You Do?
If you find yourself facing a construction dispute where the pre-action protocol applies, it is critical to seek expert legal advice promptly on the proper steps to take in order to comply. Your construction lawyer can provide guidance tailored to the specific circumstances at hand.
In general, the protocol requires parties to provide a brief and proportionate early summary to the other side identifying the issues in dispute. This initial notice should outline your perspective on the problems that have arisen and their impact on the project. Your legal advisor can assist with drafting this protocol notice to include appropriate detail and supporting documentation.
Once protocol correspondence has been exchanged, an ongoing key obligation is the disclosure of relevant documents and information to the other party. This aims to ensure both sides understand the evidence relied upon in relation to the dispute. Your lawyer can advise on reasonable requests to make for additional documents you require to assess the merits of the other party’s position. Importantly, you also need to respond reasonably and completely to any requests received for information disclosure from the other side.
A crucial aspect of the pre-action protocol is the requirement genuinely to engage in attempts to negotiate an early settlement of the dispute before commencing litigation. This involves an open mindset from both parties and a willingness to consider properly any settlement proposals made, putting forward reasonable counteroffers where appropriate. Your lawyer can represent you in any pre-action settlement negotiations and provide strategic advice on using the protocol process to aim for an optimal resolution.
The protocol also obligates parties to follow reasonable procedures suggested for alternative dispute resolution, whether this be mediation, expert determination of certain issues or other methods. Your legal advisor can help navigate this part of the protocol and identify suitable dispute resolution approaches to propose.
Fundamentally, obtaining specialist construction law advice and following your lawyer’s guidance is key to complying properly with the pre-action protocol obligations and protecting your interests if the matter ultimately proceeds to court.
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Please note, this article and any accompanying video or presentation are for educational and marketing purposes only. It must not be used for giving advice in any shape or form, and it is not a substitute for legal advice. The author does not accept responsibility for loss howsoever occasioned to any person or persons acting or refraining from action as a result of this material.
