Pre-Action Protocol Construction: What You Must Do Before Court

You’ve just discovered major defects in your new building. The contractor is ignoring your calls. Payment disputes are escalating. Before you file court proceedings, there’s a mandatory process that could either save your case or sink it completely. The pre-action protocol for construction and engineering disputes dictates exactly what you must do in the next 14 to 28 days; get it wrong and judges will penalise you with cost orders that dwarf your original dispute. For construction and building disputes, early advice from a commercial law solicitor is essential.

Learn how to use the pre-action protocol to settle disputes and avoid costly court battles.

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What is the pre-action protocol for construction and engineering disputes?

The pre-action protocol for construction and engineering disputes is a mandatory court procedure you must complete before filing any claim, and it applies to specific types of disputes with defined requirements:

• Scope of application: Covers all construction disputes exceeding £10,000, including defective workmanship, payment claims, contract breaches, and professional negligence across residential, commercial, and infrastructure projects.
• Legal foundation: Operates under Practice Direction on Pre-Action Conduct and Civil Procedure Rules, making compliance enforceable through cost penalties and case management orders.
• Primary objective: Forces parties to exchange comprehensive information about their positions, supporting evidence, and settlement proposals before incurring substantial litigation costs.
• Mandatory exchanges: Requires claimants to send detailed letters of claim and defendants to provide substantive responses within strict timeframes, with both sides disclosing documents and expert opinions.

Step-by-step: What you must send in your letter of claim

Your letter of claim under the pre-action protocol construction must contain specific information that clearly sets out your case, and missing any mandatory element gives your opponent grounds to challenge your compliance:

• Parties and contract details: Full names, addresses, contact details, contract date, contract type (JCT, NEC, bespoke), contract sum, and project address with precise location.
• Factual chronology: Detailed timeline of events including dates of alleged breaches, when defects appeared, correspondence exchanged, and previous attempts to resolve matters.
• Specific breaches alleged: Exact contractual clauses breached, nature of defective works with locations, payment amounts disputed with invoice references, or professional duties failed by consultants.
• Financial losses claimed: Itemised breakdown including rectification costs with quotations, consequential losses such as lost rental income, professional fees incurred, and interest calculations.
• Supporting documents: Attach the signed contract, relevant correspondence, photographic evidence, expert reports if obtained, invoices, payment records, and any adjudication decisions.
• Proposed resolution: State your settlement offer, timeframe for response (typically 14 days for acknowledgment, 28 days for full response), and willingness to engage in alternative dispute resolution.

What happens when you receive a letter of claim: Your response strategy

Receiving a letter of claim under the construction pre action protocol triggers strict deadlines that you must meet, and your response strategy will either strengthen your defence or expose you to cost penalties:

• Acknowledge within 14 days: Send written acknowledgment confirming receipt, identifying whether you’re the correct defendant, and stating when you’ll provide your full response (maximum 28 days from acknowledgment).
• Gather all documentation: Collect the original contract, site correspondence, payment records, photographs of works, meeting minutes, and technical reports already in your possession.
• Assess the allegations: Review each claimed breach against your contractual obligations, check whether defects existed or were caused by third parties, verify payment calculations, and identify any counterclaims you may have.
• Obtain expert assessment: Instruct a qualified expert (structural engineer, quantity surveyor, or relevant specialist) to inspect alleged defects, provide technical opinions on causation and liability, and estimate genuine rectification costs.
• Draft your substantive response: Admit allegations you cannot reasonably dispute, deny claims with detailed reasons and evidence, make any counterclaims with supporting figures, and suggest mediation or other dispute resolution methods.

Expert evidence: When do you really need it and how much will it cost?

Expert evidence in the construction and engineering pre action protocol is often necessary to prove technical claims, but instructing experts at the wrong time can waste thousands of pounds:

• Defective workmanship disputes: Structural engineers assess whether foundations, walls, or roofs meet building regulations and contractual specifications, whilst building surveyors evaluate overall construction quality.
• Valuation disagreements: Quantity surveyors calculate accurate rectification costs, assess whether interim payments were correctly valued, and provide schedule of dilapidations for lease-related disputes.
• Causation issues: Experts establish whether defects resulted from poor workmanship, defective materials, design failures, or external factors, which determines liability between contractors, subcontractors, and designers.

Typical expert costs:

• Initial reports: £2,000-£5,000 for building surveyor reports on residential defects; £5,000-£15,000 for structural engineer assessments on commercial projects; £10,000-£30,000 for quantity surveyor valuations on complex disputes.
• Joint expert appointments: Parties can agree to instruct one expert jointly, typically reducing costs by 40-50% and encouraging settlement through agreed technical findings.

Timeline requirements: Every deadline that could make or break your case

The pre-action protocol for construction and engineering disputes imposes strict timeframes that control when you must act, and missing a single deadline can result in cost sanctions or tactical disadvantage:

• Letter of claim preparation: Claimants must act within limitation periods (six years for contract breaches, twelve years for claims under deed) or lose the right to claim entirely.
• Acknowledgment deadline: Defendant must acknowledge receipt within 14 days of receiving the letter of claim.
• Full response deadline: Defendant must provide substantive response within 28 days of sending acknowledgment, though parties can agree extensions for complex disputes.
• Expert evidence timeframe: Parties should obtain and exchange expert reports during the protocol period (typically 4-8 weeks) before considering court proceedings.
• Settlement negotiation window: After full response, parties should allow reasonable time (typically 14-28 days) for settlement discussions or mediation arrangements.

What happens if you don’t follow the rules: Court penalties explained

Non-compliance with the pre-action protocol for construction and engineering disputes triggers court sanctions that can cost you more than the original dispute:

• Adverse costs orders: Courts can order you to pay the opponent’s legal costs even if you win the substantive case, meaning victory becomes financially worthless.
• Percentage-based cost reductions: Judges may reduce your recoverable costs by 25-100% depending on the severity of your breach.
• Interest penalties: Courts can award interest on damages at higher rates or from earlier dates against the non-compliant party.
• Stay of proceedings: Judges can halt your case and force you back to complete the protocol properly, giving your opponent time to strengthen their defence.

How to use this protocol as leverage to settle without going to court

The construction and engineering disputes pre-action protocol provides strategic opportunities to pressure settlement and resolve your dispute without litigation expense:

• Front-load your strongest evidence: Include compelling expert reports, photographic evidence, and damaging correspondence in your letter of claim to demonstrate the strength of your position.
• Make realistic Part 36 offers: Propose settlement figures under Part 36 rules during the protocol stage, which protects you with enhanced cost consequences if opponents reject reasonable offers.
• Use expert agreement strategically: Propose joint expert instruction on technical issues where you’re confident the findings will support your position.
• Calculate litigation risk: Present detailed cost projections showing the opponent faces £30,000-£100,000 in legal fees for a disputed £50,000 claim, making settlement economically rational.

FAQs

• What if the other party ignores the protocol completely? Document your attempts through recorded delivery and proceed to court. Judges will impose cost sanctions against them for non-compliance with the pre-action protocol construction
• Where can I find the official protocol document? The pre-action protocol for construction and engineering disputes pdf is available on the UK government’s justice website and through the Civil Procedure Rules portal, providing the complete text with guidance notes and template letters.
• Is this the same as the pre-action protocol for judicial review? No, the pre action protocol judicial review is a separate protocol for challenging public body decisions. Construction disputes follow their own specific protocol with different timeframes, requirements, and procedures tailored to technical building disputes.

The pre-action protocol for construction and engineering disputes is your opportunity to resolve disputes efficiently whilst protecting yourself from devastating cost sanctions. Follow each requirement meticulously, document your compliance, and use the protocol strategically to pressure settlement before expensive litigation begins.

Facing a construction dispute?

Qredible’s network of specialist construction law solicitors can guide you through the pre-action protocol for construction and engineering disputes, draft compliant letters, and negotiate settlements that protect your interests.

KEY TAKEAWAYS:

• The pre-action protocol for construction and engineering disputes requires parties to exchange detailed letters of claim, responses, documents, and expert evidence within strict timeframes (14 days acknowledgment, 28 days full response) before court proceedings for disputes over £10,000.
• Non-compliance with the construction pre action protocol triggers severe penalties including adverse cost orders, cost reductions of 25-100%, and interest penalties, even if you win your case.
• Strategic protocol use through strong evidence, Part 36 settlement offers, and joint experts can pressure settlement, avoiding £30,000-£100,000 litigation costs whilst demonstrating good faith to courts.