Pre-action conduct

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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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