New pre-action protocol for Construction and Engineering Disputes
04 November 2016
TeCSA has released the new Pre-Action Protocol for Construction and Engineering disputes, which is expected to come into force on 9 November.
The new Protocol introduces a number of changes:
- Parties may now agree not to use the Protocol.
- The objectives have been reformulated: parties no longer need to provide “full” information, merely sufficient information to allow positions to be understood, decisions reached and attempts to resolve the dispute made.
- The Court will only impose costs sanctions for non-compliance in exceptional circumstances.
- The general aim has been modified so that only the “outline” of parties’ cases must be made known. In addition, the parties should only “usually” meet.
- The aim of defining and agreeing the issues between the parties has been removed.
- Parties need to be put in a position where they may be able to settle not just early and fairly, as before, but also now inexpensively.
- It is now not just lower value claims where the letter of claim must be kept simple: this requirement has been expanded to “many cases, including those of modest value”. The requirements for the Letter of Claim have also been modified, so that it must contain a brief summary of claims and relief, proportionate to the claim.
- This requirement of a brief and proportionate summary applies also to the Letter of Response and any Response to Counterclaim. The former detailed requirements have been removed.
- The parties must say, in the Letter of Claim and Acknowledgement, whether they wish the Protocol Referee Procedure to apply. The Protocol Referee Procedure is a consensual process which allows the parties to apply for a referee to give directions on compliance with the Protocol.
- The parties should now normally meet 21 days after the Letter of Response (or Response to Counterclaim). The Protocol now provides for this meeting to take the form of an ADR process such as mediation.
- The previous requirement to use best endeavours to agree how the issues should be defined, if they are unable to agree a means of resolving the dispute other than by litigation, has been removed.
- The parties may by consent agree longer periods for the various steps, up to an aggregate extension for each step of 28 days.
- There is a new provision for the Protocol action to conclude automatically on completion of the pre-action meeting, or 14 days after expiry of the period within which the meeting should have taken place.
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