REUTERS | Navesh Chitrakar

Pre-action problems likely to persist

In a previous blog post we raised some of the practical problems that arise when trying to comply with the Pre-Action Protocol for Construction and Engineering disputes (the “Protocol”) in large multi party actions.

It would have been overly optimistic therefore to think the impending new Practice Direction on Pre-Action Conduct (the new Practice Direction) may address some of these concerns. The new Practice Direction replaces the Practice Direction on Pre-Action Protocols and comes into force on 6 April 2009.

No new guidance for multi party disputes

The new Practice Direction includes no provision or guidance to deal specifically with large multi party disputes. On the question of proportionality, it does nothing more than introduce provisions which apply to all types of proceedings. The Protocol already provides this for engineering and construction disputes.

New sanctions for non-compliance?

The only new sanction (that was not expressly mentioned in the previous Practice Direction), against parties who do not comply with the Protocol or who use it inappropriately to gain a tactical advantage, is the court’s power to stay proceedings until steps which should have been taken are taken. The court already has this power as part of its case management powers under CPR Rule 3 so this simply reflects what happens in practice.

How will the new Practice Direction affect construction and engineering disputes?

We already have the Protocol and past experience has shown that the TCC is willing to police Protocol behaviour and take a sensible and pragmatic view to issues that may arise in multi party cases at the pre-action stage. That said, the new Practice Direction, rather than simply missing a trick to improve our understanding of what should happen pre-action, seems to muddy the waters in relation to the way we involve experts, who have a key role to play in nearly every construction and engineering dispute.

Section IV of the new Practice Direction includes requirements that apply in all cases “except where a relevant pre-action protocol contains its own provisions about the topic”. On the subject of experts we are told “where the evidence of an expert is necessary the parties should consider how best to minimise expense”. Guidance on instructing experts is included in the new Practice Direction.

The question is, does that guidance apply to our construction and engineering disputes which are in any event governed by the Protocol?

The Protocol does contain provisions that make reference to experts:

  • It requires us, in our letter of claim and response, to give the names of any experts already instructed and to identify issues to which that expert evidence will be directed.
  • In the provisions relating to the pre-action meeting, parties are required to use their best endeavours to agree how expert evidence is to be dealt with including whether or not a joint expert should be appointed.

Are these passing references to experts, rather than a section dealing specifically with experts, sufficient to oust the requirements relating to experts in the new Practice Direction?

Surely the intention must be that it is the Protocol we follow in respect of experts and not the new general “guidance” but the position is not entirely clear. If the new requirements do apply to us what then? It is referred to only as “guidance” and talks in terms of examples rather than mandatory provisions. What if parties do not comply?

A single joint expert is unlikely to be appropriate in many TCC cases and arguably is already dealt with in the Protocol. As for the other suggested example, “an agreed expert”, it is difficult to envisage a TCC dispute where the parties will agree to the identity of an expert who is then only instructed by and paid for by one of the parties. It is unclear whether the remaining requirements, requiring us to send a list of the names of one or more experts that we would like to use to our opponents for them to have 14 days in which to object, apply only to “an agreed expert” such as this, or any expert that our client wishes to instruct at the pre-action stage?

If, as we suspect, it is confirmed by the TCC that we should continue to look to the Protocol, the TCC Guide and the relevant parts of the CPR and not the “guidance” in the new Practice Direction when we instruct our experts, hopefully this could just be a storm in a teacup.

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