Construction Pre-Action Protocol—compliance issues and sanctions

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

  • Construction Pre-Action Protocol—compliance issues and sanctions
  • Requirement to comply
  • Level of compliance required
  • Costs of compliance
  • Sanctions for non-compliance
  • Directions affecting the management of claims
  • Costs sanctions for non-compliance

pre-action-protocol'>Construction Pre-Action Protocol—compliance issues and sanctions

This Practice Note considers the basis of the requirement to comply with the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol) and the ability to claim the costs of such compliance. It also discusses the sanctions which a court might impose in the event of non-compliance with the Protocol, including case management directions and cost sanctions.

The requirements for each specific step of the pre-action procedure (eg the contents/timing of a letter of claim or response, objections to jurisdiction etc) are dealt with in Practice Note: Construction Pre-Action Protocol—letters of claim, response and meetings.

Requirement to comply

Under the Civil Procedure Rules (CPR), parties are expected to engage in pre-action attempts to resolve the dispute (or narrow the scope of it) prior to commencing litigation—see paragraphs 13 to 16 of the Practice Direction Pre-Action Conduct and Protocols (Practice Direction).

In addition, paragraph 2.2.1 of the Technology and Construction Court Guide (TCC Guide) provides that all parties are expected to have complied in substance with the Protocol, if it is applicable. For information on when the Protocol applies and the types of disputes exempted from compliance, see Practice Note: Construction Pre-Action Protocol—application, exclusions and objectives. It should be noted that the provisions of the TCC Guide still refer to, and require compliance with the sections in the first edition of the Protocol (which

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