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Using pre-action protocol for construction and engineering disputes

A pre-action protocol for construction and engineering disputes is a document that outline procedures to be taken in case of differences in building construction and engineering. The procedures facilitate dispute resolution by the parties involved without having to engage the court. The purpose of the protocol is to create an amicable environment for conflict resolution and to avoid costs related to legal proceedings. The court is only involved when relevant parties to a conflict do not come to an agreement or when one of the parties breach the terms of the protocol. Parties to a pre-action protocol are usually the owner of a building, a construction company, a civil engineer and an architect.

The person initiating procedures of the protocol is referred to as a claimant, and the one a claim is made against is a defendant. The protocol begins with an applicant sending a letter of claim to a defendant. The defendant must acknowledge receipt of the letter within 14 days of receiving it. This is done in writing. Failure to acknowledge the letter within 14 days gives a claimant the right to initiate court proceedings. A defendant may then raise any issues that he has with the claims that are put forward by the claimant. His objection must be raised within 28 days of receiving the letter of claim. A defendant can object the claims on the grounds that:

  • The court in question does not have jurisdiction over the matter
  • That the issue should be referred to an arbitrator
  • Alternatively, that he is the wrong defendant.

The objection must clearly identify parts of the letter of the claim that is being contested. The defendant must also be clear on the grounds he used to come up with the objections. A defendant who fails to send a letter of objection within the stipulated period may be allowed to object in future. However, the court can impose financial penalties on a defendant who fails to object on time. A defendant may also withdraw his objection if he finds it fit. In such case, the defendant and the claimant will still adhere to the procedures of the protocol. The protocol stipulates that a letter of claim be deemed to be received by a defendant on the day when the defendant withdraws his objections.

A defendant who does not see it fit to make an objection must send a letter of response within 28 days of receiving a letter of claim. The defendant and his claimant may agree to extend this period, but the extension must not exceed three months. The letter of response explains which items in the letter of claim a defendant agrees with and which ones he does not. A defendant may also mention any contributory negligence on the part of a claimant. He must include the grounds of accusation he used to conclude that the claimant was also negligent. The letter of response also mentions experts that have already been instructed by a defendant and the issues the experts will be addressing. The letter of response may also contain a counterclaim. 

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