The Construction and Engineering Pre-Action Protocol, or PAP for short, has been with us for 15 years, designed to help parties either avoid litigation completely or hone in on areas of contention ahead of appearances in the Technology and Construction Court (TCC). Time and cost savings would result from this mandatory procedure, it was expected.
The original protocol was revised by the Rules Committee of the TCC in 2005-2006 and although there has been consultation and reports since then the current Protocol is essentially the one revised ten years ago. There have recently been reports that TCC judges think it is overdue another review. They are probably right. It would be surprising if a procedure last revised over ten years ago was as robust in current conditions as it used to be.
It has been under fairly constant scrutiny though. Following Lord Justice Jackson’s report on the costs of civil litigation, in 2011 the Protocol was examined by a working party of the TCC, which the Technology and Construction Solicitors’ Association (TeCSA) said didn’t adequately take on board the views of all court users, especially clients. TeCSA decided to commission its own study that would capture some of those views, as well as the views of others, and has just published a useful report into the use and perceptions of the Protocol.
One of the long standing criticisms of the PAP is that it causes front end loading of legal costs. It is a long time since front end loading was a big problem in the world of construction contracts; it was a once common practice which left contractors badly exposed to inflation. For those with long memories though front end loading is a loaded phrase and they will instinctively shy away from anything tainted by it.
Rumours have been swirling since last year that the PAP might have its mandatory nature removed by a review, or even be scrapped, and the TeCSA report is timed to inform any debate about such change. The report points the way towards areas where reform might be needed, and also points towards areas for further research.
The report authors, independent consultants Acuigen, suggest that a larger, more representative sample in a further study would include contributions from judges, clients of the construction industry, solicitors and barristers. This could mean bringing a wide range of representative groups into the study, including TECBAR, the TCC judges, the Civil Procedure Rules Committee, and the Construction Industry Council.
TeCSA’s report suggests that solicitors feel that a mandatory PAP should stay. Anecdotally at least, barristers and judges are less convinced, perhaps because they don’t get the same overview of the usefulness of the PAP in preventing disputes coming to court. Almost all respondents to the survey agreed that it is a valuable pre action mechanism, although they were split more or less evenly on whether it requires amendment.
Overall there seems to be little doubt that the Protocol has been good for construction dispute resolution, and that the overwhelming majority of users – solicitors and their clients – want it to stay. There seems to be little demand for removing its mandatory status, let alone for dropping it completely as some might have feared could happen. TeCSA’s report suggest that a light touch revision could be all that is called for. CL
Nick Barrett
Editor