Pre-action protocols for construction cases

United Kingdom
Peter Mansfield of our construction insurance group reports on the "CAP" protocol and Caroline Cummins of our construction disputes resolution group report on the TeCSA protocol

Introduction

Readers of the bulletin will already be aware that the Woolf reforms have brought about a radical transformation of the civil justice system in England and Wales. Of all the changes probably the most innovative has been the introduction of the pre-action protocols, designed to regulate the conduct of the parties before proceedings commence.

The objective of these protocols is to provide a touchstone of reasonable behaviour which, if followed, will maximise the chances of a sensible settlement being reached without resort to the courts. If litigation cannot be averted the aim is to enable the parties to cover much of the ground of defining issues and exchanging information that would otherwise have been the subject of the early stages of proceedings.

What happens if a protocol is ignored? The answer is that the Civil Procedure Rules give wide powers to the Courts to penalise unreasonable behaviour both before and after the commencement of proceedings by way of penal costs orders or, in extreme cases, by striking out a claim or some part of it. The Rules also contain provisions that are intended to bolster pre-action protocols in practice for example the facility for orders for pre-action disclosure of documents. The message of litigants is clear: act reasonably and endeavour to resolve your differences before you use the Courts or you will find it an unpleasant experience when you do.

Early days

As at 26 April 1999 when the Civil Procedure Rules came into effect the pre-action protocol framework comprised a practice direction (reference BO-001 in the new "White Book") and the protocols covering personal injury claims and clinical negligence claims. The Rules made it clear that where there was no protocol in existence to cover a specific class of action the courts were to judge pre-action behaviour by reference to the closest equivalent endorsed by BO-001. By this device the Rules cleverly:

  • encouraged groups interested in particular classes of dispute to draft their own protocols for consideration by the Lord Chancellor's Department; and

  • gave an indication of the kind of pre-action behaviour that the Lord Chancellor's Department would endorse.

Predictably this approach has spawned a batch of draft protocols. It is understood that there are over 20 proposed wordings currently with the Lord Chancellor's Department. Of these the most relevant to construction claims are:

  • the "CAP" protocol for claims against professionals; and

  • the "TeCSA" protocol for claims with the potential for referral to the Technology and Construction Court ("TCC").

"CAP": the draft protocol for claims against professionals

The draft protocol for professional negligence claims follows a similar format to the two already approved protocols. It requires the Claimants to set out their claim in detail in a Letter of Claim. The professional then has a 3 month period in which to investigate the allegations, at the end of which he must respond. He can do this in a detailed letter, known as a Letter of Response. However, if the professional wishes to make an offer of settlement, the response can be contained within a briefer Letter of Settlement. Under certain circumstances, the professional's response may prompt a further negotiation period.

This timetable is intended to achieve all of the aims in the Practice Direction for Protocols set out above. The parties are encouraged to exchange documentation at an early stage. They are also required to set out their claims in detail, so that both parties can understand the allegations which are being made by the other party. This has the knock-on effect of ensuring that the nub of a dispute is clarified at an early stage, thereby assisting the efficient management of proceedings if litigation cannot be avoided.

The hope, however, is that litigation will be avoided. The protocol encourages this simply by requiring the parties to set out their arguments unambiguously and by encouraging the use of alternative dispute resolution.

The TeCSA protocol

In its current draft form, the TeCSA protocol is designed for use by all users of the TCC. However, the claims which are dealt with by the TCC are notable by their variety; they range from the technically complex and high value multi party claims to the more simple debt collection claims. For good reason therefore the protocol is noticeably less prescriptive than the CAP protocol and is designed to be suitable for all types of claim.

A Claimant would not be required to comply with the protocol before commencing proceedings to the extent that the proposed proceedings are:

  • for the enforcement of an adjudicator's decision;

  • for injunctive relief;

  • the subject of a claim for summary judgment; or

  • related to the same or substantially the same issues as have been the subject of recent adjudication or some other formal ADR procedure.

We envisage that parties to these types of proceedings are likely to want immediate access to the courts and this is not discouraged. In fact, although the protocol provides for:

  • a letter of claim summarising the factual and contractual basis of the claim and details of the relief claimed, for example a breakdown of the damages or details of the extension of time claimed;

  • a detailed Defendant's response (including a requirement to raise jurisdictional points if appropriate);

  • a pre-action meeting which is described in a manner which resembles a mediation; and

  • a requirement on the parties to consider whether some form of ADR would be suitable.

There remains an overriding requirement of reasonableness which is designed to allow for flexibility. So, although the Defendant is required to send a Letter of Response to the Claimant within 28 days of receipt of the Letter of Claim, the parties may agree a longer period if it is reasonably necessary. If one party behaves unreasonably this will be relevant when a court is asked to impose sanctions (in costs) for non compliance at a later stage.

Which protocol?

It has been said that, in comparison with the TeCSA protocol, there is a stronger emphasis in the CAP protocol on averting litigation brought about by the requirement for greater detail in the letter of claim, the provision of a longer response period for the Defendant and the introduction of the "Letter of Settlement". The TeCSA protocol certainly provides the means whereby issues may be identified early and opposing parties brought together with the object of averting litigation, but overall its requirements do appear less onerous. This may be because the TCC does not wish to present so many hurdles that potential users of its services are discouraged and seek justice elsewhere, for example in arbitration. This may be a valid concern.

Both draft protocols are currently with the Lord Chancellor's Department for consideration. As the TeCSA protocol seeks to embrace all claims which might potentially come before the TCC, which would include claims which would also fall under the CAP protocol umbrella, further debate will be required to determine which protocol will take precedence. This is a real issue which will need to be resolved to avoid uncertainty amongst potential TCC litigants who are caught by the conflicting regimes of these two protocols.

For further information please contact Peter at rjm@cms-cmck.com or on +44 117 9300200.