New research on the Pre-action Protocol
Last summer Simon Tolson, Partner of Fenwick Elliott and Chairman of TeCSA led a piece of research on the re-action Protocol through the TeCSA Litigation Sub-Committee.
The result of that research is now available as “A Report Evaluating the Perceived Value of the Construction and Engineering Per-action Protocol” on the TeCSA website and with the TCC Judges.
The research strongly supports retention of the Pre-action Protocol (PAP) and underlines the fact that the PAP is overwhelmingly valued by those who are directly involved with disputes in the engineering and construction sector.
The research included the examination of data records from 216 disputes, supplemented by 39 in-depth telephone interviews with law firms providing construction services, and leading construction companies, who collectively had experience of 677 disputes to which the PAP was applicable.
Overall, 95% of respondents thought that the PAP was a valuable pre-action mechanism and 87% believe that it is creating access to justice. 49% of respondents suggested amendments to make the PAP more effective.
Based on this evidence, TeCSA has said there should be no doubt that the PAP ought to remain and that it should continue to be a compulsory step for those wishing to pursue a claim through the courts.
In examining how the PAP could be amended, approximately 75% of respondents felt that access to TCC Judges pre-action or to apply for their guidance would be beneficial. The feedback on ways to improve the PAP clearly showed that Judges of the TCC can contribute to the effectiveness of PAP by making themselves available to both parties to give guidance.
One area of active discussion relating to the PAP relates to the question of costs. Presently a defendant is unlikely to recover costs involved in rebutting a claim from a litigant that does not go to trial. Resolving such issues around pre-action costs was a favoured suggestion by 56% of respondents. Issues surrounding costs are a key area for discussion within the Civil Procedure Rule Committee looking at reform and TeCSA has urged them to focus on this area whilst recognising the value of the PAP as a mandatory pre-trial mechanism.
As regards the contributors to this study they came not just from Solicitors, but also main contractors, specialist subcontractors, consultants and insurers.