Pre-action conduct

Prior to commencing proceedings, the pre-action phase is an important part of the dispute resolution process. Parties are often trying to investigate or prepare their cases and explore opportunities to resolve the dispute without resorting to litigation. In addition, there are rules which set out particular pre-action steps that the courts expect parties to comply with if they intend to bring proceedings—non-compliance can result in a party being penalised.

For construction and engineering disputes, the parties should follow the process set out in the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol), which is sometimes referred to as the Construction Protocol or PAP. This process is intended to assist parties in understanding the case they are presenting (or having to meet), so that the parties can seek to resolve the dispute prior to commencing proceedings or, if this is not possible, to clarify the issues to be litigated.

Pre-action considerations

There are a number of steps and considerations that should be undertaken at the pre-action stage in order to maximise prospects of success once litigation is commenced. Practice Note: Key considerations at the pre-action stage of a construction

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Construction weekly highlights—24 July 2025

This week's edition of Construction weekly highlights includes the Court of Appeal (CoAs)’s decision in relation to NHBC Buildmark Choice policies confirming that the cause of action accrues when the insured party ‘has to pay more’ to complete the building work as a result of contractor insolvency (National House Building Council v Peabody Trust), Construction Leadership Council (CLC) guidance on Building Control Approval Applications for new higher-risk buildings, Ministry of Housing, Communities and Local Government (MHCLG) guidance on the Building Safety Levy, MHCLG’s announcement of legal deadlines for landlords to remediate unsafe cladding in social housing, a Royal Institution of Chartered Surveyors (RICS) consultation on it updated cladding valuation standard, a British Standards Institution (BSI) consultation on a new code of practice for bringing safe construction products to the market, a Technology and Construction Court (TCC) decision enforcing an adjudicator’s decision to award the responding party in the adjudication the notified sum (VMA Services v Project One), a CoA decision providing guidance on "costs directly incurred" in a waste management project agreement (Buckinghamshire Council v FCC Buckinghamshire Ltd), an update on the status of the Planning and Infrastructure Bill together with updated guidance from MHCLG on the same, the National Infrastructure and Service Transformation Authority (NISTA)’s interactive Infrastructure Pipeline tool, and publication of the Welsh Government’s circular on updated building control profession standards and codes.

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