Construction Pre-Action Protocol—background to the second edition
Construction Pre-Action Protocol—background to the second edition

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

  • Construction Pre-Action Protocol—background to the second edition
  • The Jackson Final Costs Report
  • Civil Justice Council working party
  • Civil Procedure Rule Committee (CPR Committee)
  • Acuigen report—January 2016
  • Second edition came in force

This Practice Note provides a history of the background to the second edition of the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol), which came into force on 9 November 2016, replacing the first edition which had been in force from October 2000 (with some revisions from April 2007).

It looks at, in chronological order, the key recommendations made by Lord Jackson to amend the Protocol, as set out in his final costs report in 2009, comments and steps taken by the relevant Civil Justice Council working party and the Civil Procedure Rule Costs Sub-Committee, and finally at the Acuigen Report produced following a survey of the industry about the first edition of the Protocol (and the process generally).

The Jackson Final Costs Report

The effectiveness of the Protocol was discussed in Lord Justice Jackson’s report entitled Review of Civil Litigation Costs: Final Report at Chapter 35, section 4. This took into account feedback provided by users of the first edition, which had been mixed. On one side, the judiciary and the Technology and Construction Bar Association (TECBAR) took the view that it served to increase costs, particularly at the front end of the dispute, and delay dispute resolution. On the other hand, the Technology and Construction Solicitors’ Association (TeCSA) thought, if used sensibly, the Protocol promoted early settlement and