Pre-action protocol: How not to impress a judge

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 complied in substance with the protocol by imposing an order for costs – but only if the non-compliance has led to proceedings being started that might otherwise have been avoided, or has caused costs to be unnecessarily incurred. Mr Justice Akenhead’s recent decision in TJ Brent and Another vs Black & Veatch illustrates well that the court will adopt a robust and practical approach in this area.

The claim concerned an oil leak in 2000 which led to a claim by Southern Water against Brent. In 2005 Southern Water had written to Brent saying a large claim was on its way. Brent’s solicitors wrote to Black & Veatch giving some details of the claim and asserting that it was liable to contribute. Black & Veatch’s solicitors responded denying any liability. Further exchanges of correspondence followed and without prejudice meetings were suggested.

However, Black & Veatch consistently denied liability and refused to attend any meetings.

In 2006 Southern Water sent a detailed claim to Brent. Black & Veatch again firmly rejected any liability. The exchanges continued with Black & Veatch maintaining its position that it was not liable and would not attend meetings. In 2007, Brent’s lawyers became concerned that they might be running into limitation problems and started proceedings for contribution.

Black & Veatch had been given enough information about the claim and its basis. The battle lines were well and truly drawn. The protocol had, in substance, been complied with

Shortly afterwards, the claim by Southern Water was settled and so the claim crystallised. When the particulars of the claim were served, Black & Veatch complained that no letter of claim complying with the protocol had been served. Some seven months later an application for costs was made on the basis of this alleged non-compliance.

Given the extensive exchanges that had taken place, this seems to have been an optimistic application. The judge was not impressed by it. The action had by now been stayed for mediation and yet Black & Veatch persisted with the application. It appears that it was trying to obtain a costs order in its favour in advance of going into the mediation.

The judge firmly rejected its application.

He said it was necessary to look at the substance of the matter and not semantics or technical non-compliance with the protocol. The fact that Brent had not put its address in a claim letter was immaterial. The complaint that there could not have been a letter of claim until the settlement with Southern Water was not a substantive point as it is always possible to launch a prospective claim for contribution. Black & Veatch had been given enough information about the claim and its basis. Furthermore, it had consistently rejected any suggestion of liability and refused to attend any settlement meetings. The battle lines were well and truly drawn. The protocol had, in substance, been complied with.

There have now been several cases, to which the judge referred, which emphasise that the protocol must be approached in a practical and sensible manner. The object of the protocol is to save expense and avoid litigation. To use the judge’s own words in Orange Personal Communication Services vs Hoare Lea, slavish application of rules, practice directions or protocols is to be avoided if it undermines the overriding objective – saving expense, proportionality, expedition and fairness.