Construction law folder

What is pre-action protocol?

Before litigation proceedings are issued, it is imperative for the parties involved to embark on certain pre-action steps.

The process is known as the pre-action protocol and is set out under the Civil Procedure Rules. There are several protocols for disputes, including those within the construction and engineering industries. Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims.

What are the objectives of the pre-action protocol?

In the construction industry, the purpose of a pre-action protocol is as follows:

  • To facilitate the early exchange of comprehensive information about the prospective legal claim.
  • To provide the opportunity for parties to agree a settlement of the claim before proceedings are launched.
  • To provide the basis for effective management of legal proceedings where it is necessary for litigation to go ahead.

Pre-action protocol for construction disputes

In the construction industry, there is a clear timetable setting out the exchange of information about a claim prior to the issuing of court proceedings. The process begins with the proposed claimant sending the proposed defendant a letter of claim. This letter must set out a summary of the facts on which each claim is based, the basis of each claim and the nature of the compensation required, for example, damages.

Prospective defendants are required to acknowledge the letter of claim within 14 days of receipt and send a response [usually] within 28 days of receipt. This timeframe can be extended and if you have received a letter of claim, the practitioners at Michael Gerard Solicitors can advise whether an extension is necessary in your case. They can also manage the content of your reply which needs to include relevant information including what facts are agreed, which claims are accepted and the basis of the rejection, where claims are rejected.

Likewise, if you have a claim against another party, Michael Gerard Solicitors can assist the proposed claimant.

Counter claims in pre-action protocols

In some circumstances it is appropriate to issue a counterclaim in response to the letter of claim. The team at Michael Gerard Solicitors can advise if this is applicable in your circumstances. If so, the proposed claimant then has 28 days from the date of receipt to respond to the counterclaim.

The pre-action meeting

Whether or not there is a counterclaim, if the claim continues to be disputed, the protocol will then require a pre-action meeting between the parties involved. The purpose of this important meeting is for the parties to agree on the main issues in the case, to identify the cause of each individual disagreement and to consider whether and if so how, the issues can be resolved without the need for litigation. Due to the time and expense involved in litigation, we will work with you with the aim of resolving the dispute at this stage.

Where litigation is unavoidable, the pre-action meeting should be used to ensure that legal proceedings are conducted in line with the agreed overriding objectives. These can include minimising expense, keeping costs proportionate and making sure the dispute is being dealt with fairly.

Whether it results in litigation or not, the pre-action protocol is an important and necessary step in the legal progress. For this reason, and the fact that cost penalties may be applicable for non-compliance with the protocol, it’s essential to ensure every part of the process is correctly adhered to both in circumstances where it provides a solution and those in which it forms the first step in the litigation process.

Construction pre-action protocol compliance

Any issues with pre-action protocol can delay and possibly even derail the legal process, so it is essential to make sure every box is ticked. This can be an onerous and time-consuming task for busy professionals who are unfamiliar with the intricacies of construction law, so it is advisable to get a construction law expert to manage this process for you. The practitioners at Michael Gerard Solicitors can oversee and advise on every aspect of your obligations when it comes to pre-action protocol.

What does the pre-action protocol process involve?

At Michael Gerard Solicitors, we can manage the complete process from drafting the Letter of Claim or responding to the Letter of Claim, right though to mediation and/or without prejudice meetings with the other side in the dispute. The areas we can ensure compliance with include:

  • Letter of claim, response and any subsequent meetings
  • Claimant – letter of claim
  • Defendant – acknowledgement of letter of claim
  • Defendant – objection to jurisdiction
  • Defendant – letter of response
  • Claimant – response to counterclaim
  • Both parties – pre-action meeting/mediation
  • Extensions of time
  • Expert evidence

As you navigate the various stages, the practitioners at Michael Gerard Solicitors will guide you through everything that needs to be considered. This includes the level of compliance required, whether it is possible to recoup any costs associated with non-compliance and issues surrounding the use of expert evidence, objections to jurisdiction and extending the time needed.

Exceptions to pre-action protocol

In circumstances where both parties agree, it may be possible to bypass some or all of the processes set out in the protocol. There are also some permitted exceptions to the protocol. If either of these options is applicable to your circumstances, we can advise on the best course of action.

Pre-action protocol solicitors

The practitioners at Michael Gerard Solicitors will provide the highest levels of advice throughout the pre-action protocol process with the aim of settling the matter and thus eliminating the need for litigation. Where court proceedings are inevitable, we will continue to provide support, including recommending excellent specialist construction barristers to represent clients in court, including the Technology and Construction Court.

To find out more about how a solicitor at Michael Gerard Solicitors can help with pre-action protocol or any aspect of a construction dispute, please call 01858 414 290 or send us a message.

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