A new "Pre-Action Protocol" governing construction disputes has recently come into force.
From now on, this Protocol will have to be followed by anyone wishing to bring a construction or engineering claim, (including professional negligence claims against design consultants) before they can start proceedings in court.
The Protocol procedure involves the following:-
1. A detailed pre-action letter ("Letter of Claim") is sent to the prospective Defendant, setting out the facts; the legal basis of the claim and a breakdown of the damages sought.
2. The prospective Defendant acknowledges the letter within 14 days and replies within a further 14 days (which can be extended by agreement) setting out his objections.
3. The parties then have a "without prejudice" meeting to narrow the issues and discuss procedure.
The aim of the Protocol is to encourage early settlement, or at the very least to enable both parties to know the other's case, and the issues between them, before court proceedings are instituted.
Failure to comply with the Protocol will be viewed dimly by the court, and will be taken into account when the court gives directions and, most significantly, when awarding costs. A party who wins its case may find that failure to comply with the Protocol is a serious obstacle to recovery of its costs.
For further information please contact Caroline Cummins at caroline.cummins@cms-cmck.com or on +44 (0) 20 7367 2914 or Vanessa Hall at vanessa.hall@cms-cmck.com or on +44 (0) 20 7367 2670.
