Pre-action conduct

View Construction by content type:

Practice notes

Precedents

Q&As

Featured Construction content

Escrow accounts and escrow agreements

This Practice Note examines why parties involved in a construction project may enter into an escrow agreement (or escrow deed) to set up an escrow...

Build Operate Transfer (BOT) contracts

The Public Private Partnership (PPP) models are a popular way for governments to involve private investment, expertise and risk in procuring...

FIDIC contracts—introduction to the Silver Book 2017

In December 2017, FIDIC launched the second editions of the Red, Yellow and Silver Book. This Practice Note is an introduction to the FIDIC Silver...

Differences between adjudication and other forms of dispute resolution

This Practice Note identifies some of the key differences between adjudication and litigation, arbitration, mediation and expert...

Practice notes

Target cost contracts on construction projects

What is a target cost contract?A target cost contract is a type of cost reimbursable contract under which the contractor is paid the ‘actual cost’...

9th Nov

Practice notes

Defects liability period and rectification of defects

It is common in construction projects for defects to manifest or appear in the works. Most construction contracts require the contractor to return to...

9th Nov

Practice notes

Concession contracts—materials and resources

Brexit impact—public procurement: The UK public procurement regime derives from EU public procurement laws, and is therefore impacted by the UK’s...

9th Nov

Practice notes

Responsibility for Employer's Requirements

This Practice Note looks at Employer’s Requirements (also referred to as ERs) within a building contract. It explains what Employer’s Requirements are...

9th Nov

Practice notes

Schedules of services

This Practice Note examines the purpose and content of the schedule of services that will usually be appended to a consultant’s appointment entered...

9th Nov

Practice notes

Letters of intent—construction

What is a letter of intent?Letters of intent are used in construction and engineering projects to allow the employer to mobilise a contractor before...

9th Nov

Practice notes

Liquidated damages in construction contracts

This Practice Note explains what liquidated and ascertained damages (LADs/LDs) are and their purpose in a building contract. It considers the...

9th Nov

In-house

Practice notes

SBCC (Scottish Building Contract Committee) standard forms of contract

This Practice Note looks at the SBCC (Scottish Building Contract Committee) standard forms of contract and the key differences between them and the...

Produced in partnership with MacRoberts LLP 9th Nov

Scottish Law

Practice notes

FIDIC contracts—introduction to the Yellow Book 1999

This Practice Note looks at the FIDIC Conditions of Contract for Plant and Design Build 1999, commonly known as the FIDIC Yellow Book 1999.FIDIC...

Produced in partnership with Victoria Tyson of Corbett & Co 9th Nov

In-house

Practice notes

'Pay when paid' and 'paid when certified' clauses

This Practice Note considers ‘pay when paid’ clauses and ‘pay when certified’ clauses in construction contracts, and the relevant provisions of the...

Produced in partnership with Womble Bond Dickinson 9th Nov

Practice notes

Interim payments in construction contracts

This Practice Note provides an overview of what interim payments are, how the right to be paid (usually by monthly or stage/milestone payments) arises...

9th Nov

Practice notes

Breach of natural justice in adjudication

Produced in association with 4 Pump CourtPrinciples of natural justiceIf an adjudicator breaches the rules of natural justice during the adjudication...

9th Nov

In-house

Practice notes

Duty to warn

This Practice Note examines the extent to which contractors, sub-contractors and consultants have a duty to warn their employer of inadequacies that...

9th Nov

Practice notes

Scott Schedules in construction disputes

Scott Schedules are often very useful in construction disputes. They help to identify the key issues between the parties, and to set out for the judge...

Produced in partnership with James Bowling of 4 Pump Court 9th Nov

Practice notes

Benefits and risks of adjudication

Produced in association with 4 Pump CourtParties to a 'construction contract' have the right to refer any dispute that has crystallised to...

9th Nov

Practice notes

The contractor's programme

This Practice Note considers the status of the programme in a construction contract, what difference it makes if the programme is a contract document...

9th Nov

Most recent Pre-action conduct content

Precedents

Construction Pre-Action Protocol letter of claim—defects

[ON THE HEADED NOTEPAPER OF CLAIMANT’S SOLICITORS][Name of defendant or defendant’s solicitor, if known][Address][Date]Dear [insert contact...

2nd Dec

Precedents

Construction Pre-action Protocol letter of claim

[ON THE HEADED NOTEPAPER OF CLAIMANT’S SOLICITORS][Name of defendant or defendant’s solicitor, if known][Address][Date]Dear [insert contact...

2nd Dec

Q&As

If a party is silent in response to points made in a letter of claim will those points be deemed to be accepted?

The obligations of parties pre-action are set out in the Practice Direction Pre-Action Conduct and Protocols (the Practice Direction) and the...

28th Nov

Q&As

Is there any guidance on when the Pre-Action Protocol for Debt Claims applies as opposed to other protocols applying? In particular, which protocol would apply where a private builder company is owed money by an individual following the non-payment of an invoice in respect of building works?

The Pre-Action Protocol for Debt Claims (the Debt Protocol) came into force on 1 October 2017.The Debt Protocol is not a general protocol which...

Produced in partnership with Julia Dias QC of 7KBW 28th Nov

Q&As

Do you include the VAT element in a debt claim when issuing the letter of claim and claim form?

This Q&A considers the scenario where A has a claim against B which is a debt claim for the payment for good/services supplied by A to B and where...

28th Nov

Q&As

Does a defendant have to address every fact set out in a letter before action / claim, even if not relevant to the claimant's legal case?

The Pre-Action Protocols (Protocols) and, in the event that none of the specific Pre-Action Protocols apply, the Practice Direction—Pre-Action Conduct...

28th Nov

Q&As

Can you draft a single letter of claim addressed to multiple prospective defendants? Does it matter if the prospective defendants have different legal representatives?

A letter of claim is a prerequisite to the issue of proceedings under the Practice Direction Pre-Action Conduct and Protocols (the Practice...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 28th Nov

Precedents

Precedent instructions or brief to counsel

[IN THE HIGH COURT OF JUSTICE[BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES OR IN [insert location]]][Specify division][Specify specialist...

28th Nov

Practice notes

Types of dispute resolution clauses—ADR, multi-tier, hybrid and carve-out clauses

Brexit: The UK's departure from the EU on exit day ie Friday 31 January 2020 has implications for practitioners considering cross border issues...

18th Nov

Practice notes

Construction Pre-Action Protocol—application, exclusions and objectives

This Practice Note provides guidance on when the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol) applies, as well as the...

19th Oct

Practice notes

Construction Pre-Action Protocol—comparison of editions [Archived]

ARCHIVED: This archived Practice Note provides a comparison between the first and second editions of the Protocol. The second edition came into force...

6th Oct

Practice notes

Construction Pre-Action Protocol—background to the second edition [Archived]

ARCHIVED: This Practice Note provides a history of the background to the second edition of the Pre-Action Protocol for Construction and Engineering...

6th Oct

Q&As

During the pre-action protocol stage, should the parties seek to convene a pre-action meeting?

STOP PRESS: this Q&A is based on the first edition of the pre-action protocol (in force until 8 November 2016). For a comparison of the two editions...

28th Sep

Q&As

If parties have started (but not completed) the pre-action process under the first edition of the Pre-Action Protocol for Construction and Engineering Disputes, should they now switch to the second edition or continue under the first?

The second edition of the protocol came into force on 9 November 2016, however it does not contain any transitional measures to deal with the...

28th Sep

Q&As

Is there any authority which indicates whether it is reasonable to refuse ADR/meditation in circumstances where—i) the defendant claims the claim is time-barred and ii) a preaction meeting/negotiation has already taken place (in compliance with the Construction and Engineering Protocol)?

When considering whether it may be reasonable to refuse ADR or mediation, it is important to consider the factors that the courts will take into...

28th Sep

Q&As

Does the Construction Pre-Action Protocol apply to a low value dispute between a homeowner and builder? Does it make a difference if the homeowner is the potential claimant?

As set out in paragraph 1 of the Practice Direction Pre-Action Conduct and Protocols, the purpose of the Protocols regime under the Civil Procedure...

Produced in partnership with Ryan Turner of Lamb Chambers 28th Sep

Practice notes

Construction Pre-Action Protocol—letters of claim, response and meetings

This Practice Note considers the requirements of the second edition of the Pre-Action Protocol for Construction and Engineering Disputes (the...

26th Sep

Precedents

Construction Pre-Action Protocol letter of claim—variation dispute

[ON THE HEADED NOTEPAPER OF CLAIMANT’S SOLICITORS][Name of defendant or defendant’s solicitor, if known][Address][Date]Dear [insert contact...

26th Sep

Precedents

Defendant’s acknowledgement of letter of claim under Construction Pre-Action Protocol

[ON YOUR LETTERHEAD][Name and address of claimant’s solicitor]Dear [Insert contact name][Insert subject of letter][We act for [client]. We have been...

26th Sep

Precedents

Letter of response—construction or engineering dispute

[ON YOUR LETTERHEAD][Name and address of claimant’s solicitor]Dear [insert contact name][Insert subject of letter]We write further to your client’s...

26th Sep