Construction Pre-Action Protocol—Protocol Referee Procedure
Construction Pre-Action Protocol—Protocol Referee Procedure

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

  • Construction Pre-Action Protocol—Protocol Referee Procedure
  • How does a party start the procedure?
  • Who is the referee and how are they appointed?
  • How the protocol referee procedure works
  • The decision of the referee
  • Confidentiality
  • Who is responsible for the costs of the procedure?

The Pre-action Protocol for Construction and Engineering Disputes (second edition) (the Protocol) provides for a procedure whereby the parties can appoint a 'protocol referee' to give directions for the conduct of the Protocol process or to settle issues of non-compliance with the Protocol. The Protocol Referee Procedure (PRP) was developed and published jointly by the Technology and Construction Solicitors Association (TeCSA) and the Technology and Construction Bar Association (TECBAR). A copy of the PRP is available here:

Pre-action protocol for construction and engineering disputes—protocol referee procedure

The decision of a referee is binding on the parties in the Protocol process—see below: The decision of the referee. However, until a decision has been issued by the referee, the Protocol process is unaffected by the PRP, ie the time periods continue to run under the Protocol (PRP para 1.6).

It remains to be seen how widely the PRP will be used in practice, in light of:

  1. the Protocol is less stringent than its predecessor, for example as to the extent of information to be provided, so it will be harder to raise non-compliance issues

  2. the fact that only in exceptional circumstances will failure to comply with the Protocol lead to cost consequences (para 4.1 of the Protocol), and therefore the impact of the referee's decision may be limited

  3. the time taken to get a decision—although this