Originally published in Building
Magazine on 10th October 2008
Since 2000 if a party has wanted to bring a claim to the
Technology and Construction Court, it has had to comply with the
pre-action protocol for construction and engineering disputes. The
central requirement of this protocol is the serving of a letter to
the proposed defendant containing details of the claim. The
proposed defendant then has to respond in writing, after which a
meeting should normally take place, at which the parties identify
the main issues and see whether or not they can be settled without
recourse to litigation. The laudable aim of the protocol is to keep
the parties out of court.
The protocol is subject to the court's "overriding
objective" of dealing with cases justly. Running up costs is
deprecated, as is excessive detail. The process must be
proportionate to the size of the claim. According to a related
practice direction, the court has the power to punish a party that
has not
