Pre-ACtion Protocols (PAP)
The Pre-Action Protocols provide a framework of steps to be taken in order to bring a claim to court. The steps are designed to be easy to follow and to ensure that everyone involved is aware of the issues being disputed.
Pre Action Protocols (PAP) for Construction and Engineering Disputes
Several changes were introduced in the new PAP in 2016:
The parties may consent not to use the Protocol (paragraph 2).
The objectives of the Protocol have been reformulated so that the parties no longer need to provide “full” information, but merely sufficient information broadly to allow the parties to understand each other’s position and make informed decisions about settlement and how to proceed, and to make appropriate attempts to resolve the matter, in particular to consider ADR (paragraph 3).
Only in exceptional circumstances, such as flagrant or very significant disregard of the Protocol, will the Court impose costs consequences for non compliances (paragraph 4).
The requirement to keep the letter of claim simple and the costs of both sides modest has been broadened from lower value claims to “many cases, including those of modest value” (paragraph 5).
The general aim of the Protocol is that only the “outline” of parties’ cases must be made known, so that the parties only “usually” should meet, so that the aim of defining and agreeing the issues between the parties had been removed and so that the parties should be put in a position where they may be able to settle cases not merely early and fairly as before, but inexpensively too (paragraph 6).
The requirements of the Letter of Claim are that the letter contains a brief summary of claims and relief (proportionate to the claim) and expressly provides that experts reports are neither expected nor required, although in cases where they are central it is observed that they can help explain the Claimant’s position. Finally, the Claimant should say whether it wishes the Protocol Referee Procedure to apply (paragraph 7).
The Defendant’s acknowledgment must confirm whether it wishes the Protocol Referee Procedure to apply (paragraph 8).
The requirements of the Letter of Response only require a brief and proportionate summary of the Defendant’s response to the claim or claims and (if applicable) a brief summary of any counterclaim is required. There is a requirement to identify any third parties which the Defendant is considering submitting to a pre-action protocol process (paragraph 8.5).
A response to counterclaim shall be a brief and proportionate summary (paragraph 8.7).
The parties should normally meet 21 days after Letter of Response (or response to counterclaim). There is provision for the meeting to take the form of an ADR process such as mediation.
The parties may consent to agree longer periods for the relevant steps save that the maximum extension for any step shall not exceed 28 days in aggregate. The Protocol action is concluded automatically at the completion of the pre-action meeting, or 14 days after expiry of the period within which the meeting should have taken place (paragraph 10).
Pre-Action Protocol Referee Procedure
The PAP provides for a procedure whereby the parties can appoint a ‘Protocol Referee’ to give directions for the conduct of the PAP or settle the issue of non-complicance with the PAP. The decision of the Protocol Referee is binding on the parties. There are several procedural forms relating to the appointment process of a ‘Protocol Referee’, and a flowchart to show how the process is intended to operate. These can all be found below (TECSA will be administering the process):
