The second edition of the Pre Action Protocol for Construction & Engineering

The second edition of the Pre Action Protocol for Construction & Engineering Disputes (the Protocol) came into force on 14 November 2016. We have prepared a short guide to the Protocol.

The Protocol has a new notable feature worth highlighting, it now provides for a Protocol Referee Procedure which was introduced to assist the parties in participating in and complying with the Protocol. It is a purely consensual process as both parties have to agree to it. The Technology and Construction Solicitors’ Association (TeCSA) administers the procedure and either party may apply to the Chairman of TeCSA for the nomination and appointment of a Protocol Referee. The process requires the party making the request to set out details of the directions sought and/or the nature of the non-compliance. The Applicant is to provide its submissions on no more than four sides of A4 pages and any accompanying documents are to be no more than one lever arch folder (single sided copying). Then the responding party has five working days to respond and the applicant issues its reply two working days thereafter. The Protocol Referee reaches a decision no later than ten working days after receipt of the notice of appointment (unless extended).

My curiosity got the better of me so I contacted the TeCSA chairman to ask how many nominations had been sought in the eight months since the Protocol came into force. He very kindly responded to let me know that no appointments had been made. In accordance with the Protocol the courts will impose costs consequences for non-compliance only in exceptional circumstances such as flagrant or very significant disregard of the Protocol (see paragraph 4), so parties may consider it a fairly fruitless process to incur costs to deal with the Protocol Referee procedure. That may explain why no appointments have been sought. Well that’s my theory anyway!