Construction Pre-Action Protocol—application, exclusions and objectives
Construction Pre-Action Protocol—application, exclusions and objectives

The following Construction guidance note provides comprehensive and up to date legal information covering:

  • Construction Pre-Action Protocol—application, exclusions and objectives
  • When the Protocol applies
  • Exceptions to the Protocol
  • Impact on the use of the Protocol by the shorter trials scheme
  • Objectives of the Protocol
  • General aim of the Protocol
  • Compliance
  • Proportionality
  • Limitation

This Practice Note provides guidance on when the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol) applies, as well as the types of disputes/situations where parties do not need to comply with the Protocol before commencing proceedings (such as specific exclusions or when limitation periods are about to run out). The Practice Note also considers the general objective and aims of the Protocol, in particular the approach of the courts when dealing with the requirement for proportionality.

When the Protocol applies

The Protocol applies to 'all construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors)' (para 1.1). The current edition of the Protocol is the second edition, which applies to all pre-action processes commenced on or after 9 November 2016.

Where the dispute might also fall within the scope of another pre-action protocol, parties should generally follow the Protocol process instead of the other pre-action protocols:

  1. the Protocol prevails over the Pre-Action Protocol for Professional Negligence—see para 2.1.1 of the Technology and Construction Court Guide (TCC Guide) and para 1.1 of the Protocol

  2. the Pre-Action Protocol for Debt Claims is also waived when a debt relates to a construction dispute—see para 1.4 of that protocol and Q&A: Is there any guidance on when the Pre-Action Protocol for Debt Claims applies as opposed to other protocols