REUTERS | Yuriko Nakao

In force: the new Practice Direction on pre action conduct

The new Practice Direction on pre-action conduct comes into force today, 6 April 2009.

Construction and engineering disputes will be affected by the new Practice Direction, which will replace the current Practice Direction on Pre-action Protocols.

Sections II and IV of the new Practice Direction apply to all proceedings, including those already governed by a pre-action protocol. (The Pre-action Protocol for Construction and Engineering Disputes (the Protocol) applies to all construction and engineering disputes, including professional negligence claims against architects, engineers and quantity surveyors.)

We reported on the main changes earlier this year. We also highlighted our concern about the relationship between the additional guidance in the new Practice Direction on experts (Annex C) and the Protocol.

We have asked the Technology and Construction Court (TCC) to comment. Claire McNamara at BLP blogged about it. We have also heard from Fionnuala McCredie of Keating Chambers:

“It would of course be prudent for parties to include this requirement in the ‘checklist’ of areas to cover when appointing an expert after 6 April 2009.

However, there is some concern that compliance with this requirement is impractical for many TCC disputes. For example, in a professional negligence action an expert must be instructed in order for a claimant to determine whether a case may be properly brought at all. If a defendant were to have (in effect) a right of veto over the expert who has been appointed to assist in such an exercise then, far from minimising the expense, this practice direction would increase it.

It is likely that the TCC will be mindful of the particular characteristics of TCC litigation when evaluating the conduct of a party who has instructed an expert without complying with this section of the new practice direction.  In order to demonstrate reasonableness, it would be sensible to refer to the reasons for the appointment in appropriate correspondence with the other side and, where necessary, in communications with the court.”

We’d be interested to hear from any one with first hand experience of how the TCC is dealing with this in practice.

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