Pre-Action Protocol for Construction & Engineering Disputes
Pre-Action Protocol for Construction & Engineering Disputes: A Guide for Professional Negligence Claims Against Architects
The Pre-Action Protocol for Construction and Engineering Disputes (Second Edition) is a framework that parties must follow before starting court proceedings in construction-related claims. It came into force in late 2016/early 2017, updating the first edition with several practical improvements. Crucially, this Protocol applies to all construction and engineering disputes, including professional negligence claims against architects, engineers, and quantity surveyors. For anyone pursuing or defending a negligence claim against an architect, understanding this Protocol is essential. Compliance is effectively mandatory , courts treat it as the “normal reasonable and proportionate” pre-litigation conduct. Failing to engage in the Protocol can lead to cost penalties, although sanctions are usually reserved for exceptional, flagrant non-compliance.
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Purpose: The Protocol’s aims are to encourage early exchange of information and early resolution of disputes without litigation. By requiring each side to outline its case and consider settlement (for example, via mediation), the Protocol helps parties avoid unnecessary litigation costs or at least narrow the issues before going to court. This emphasis aligns with the overriding objective in civil procedure of handling cases justly and at proportionate cost. The second edition particularly stresses proportionality – the process should not be abused to generate delay or excessive cost in relation to the claim’s complexity and value. In short, the Protocol provides a roadmap for parties (and their solicitors) to follow in the pre-action stage of an architecture negligence dispute, balancing thorough preparation with efficiency.
Scope: If your claim is for alleged negligence by an architect in a construction context, this construction Protocol, often called the “CED Protocol”, applies. (Notably, the general Professional Negligence Pre-Action Protocol explicitly excludes claims against architects, engineers, and quantity surveyors, directing such claims to use this Construction and Engineering Protocol.) This means, for example, a claim that an architect’s faulty design or advice caused project losses must go through the steps outlined below before court proceedings. The Protocol should also be read alongside the Technology and Construction Court (TCC) Guide (Section 2), which offers additional guidance for construction disputes.
When the Protocol May Not Apply
While the Protocol is expected in most cases, there are limited exceptions. You do not have to follow the Protocol if, for instance: (a) the claim is to enforce an adjudicator’s decision under the Housing Grants, Construction and Regeneration Act 1996, (b) you seek urgent interim relief (e.g. an injunction), (c) you plan to apply for summary judgment, or (d) the dispute issues have already been addressed in recent adjudication or other formal ADR. Additionally, if all parties agree in writing, they can “contract out” of the Protocol entirely – this might happen if the parties have already exchanged detailed correspondence or engaged in mediation prior to any formal claim, so repeating Protocol steps would waste time and cost.
Importantly, the Protocol is not meant to jeopardize your claim’s limitation period. If complying would risk the claim becoming time-barred under the Limitation Act 1980, you may commence proceedings without full Protocol compliance. In such a case, you should apply to the court for directions (often the court will pause the proceedings to allow Protocol steps to be completed). In practice, this means if an architect’s alleged negligence occurred near six years ago (a typical limitation for contract claims), a claimant might file the claim to stop time running and then follow the Protocol with the court’s blessing. Generally, however, you should start the Protocol early enough to avoid this scenario.
Key Steps in the Pre-Action Process
The Protocol sets out a sequence of steps and recommended timeline for parties to follow before litigating. Below is an overview of the process and deadlines in a typical professional negligence claim against an architect:
• Day 1 – Letter of Claim: The claimant (or their solicitor) sends a detailed Letter of Claim to the architect (the prospective defendant).
• By Day 14 – Acknowledgment: The defendant/architect should acknowledge receipt of the claim letter within 14 days, confirming they got it and optionally providing their insurer’s details and stating whether they agree to use the “Protocol Referee” (explained later).
• By Day 28 – Letter of Response: Within 28 days of receiving the claim letter, the architect must serve a Letter of Response addressing the claims. If they intend to make a counterclaim (for example, a fee counterclaim or blaming the claimant or others for the problem), this is usually included here.
• By Day 49 – Claimant’s Reply to Counterclaim: If a counterclaim is raised, the claimant has 21 days (approximately by day 49 from the start) to issue a response to that counterclaim. This step is omitted if there is no counterclaim.
• Within 21 days after the Response – Pre-Action Meeting: The parties should then hold a without-prejudice meeting (often called a “Protocol meeting”) within 21 days after the Letter of Response (or after the counterclaim reply, if one was served). At this meeting, they discuss the dispute and try to resolve or narrow it. The meeting could be in person, virtual, or even take the form of a mediation session.
After the meeting, one of three things typically happens: (1) the dispute settles, ending the matter; or (2) the claimant proceeds to issue formal court proceedings (if no settlement); or (3) the parties agree to take further steps, such as another round of discussions or an alternative dispute resolution process, before litigation. The Protocol process formally concludes at the end of the meeting or 14 days after the date when the meeting should have occurred (if one party refuses to meet). At that point, if no resolution, the claimant is free to start court proceedings. The parties can also mutually agree to extend any of these timeframes if needed – for example, in a very complex professional negligence case involving an architect and multiple experts, a longer period (up to about 3 months) might be reasonable for the Letter of Response. The key is that any extensions should be by agreement; otherwise, the default times above apply.
Let’s examine these steps in a bit more detail, with guidance on how to approach them in the context of an architect negligence claim:
Letter of Claim
The Letter of Claim is the cornerstone of the Protocol. It sets out the claimant’s case against the architect in sufficient detail to allow the architect to understand the allegations and investigate. According to the Protocol, the letter should include:
• Names and Addresses: The full name and address of the claimant and each proposed defendant (e.g. the architect or architectural firm).
• Summary of Claim: A brief summary of the claim(s) being made, including the key facts of what happened and why the claimant alleges the architect was negligent. This should reference the principal contractual or statutory provisions involved. For example, if the architect had a contract requiring reasonable skill and care, or obligations under building regulations, those should be noted. The second edition of the Protocol explicitly calls for a “brief summary” – a change from the first edition which had required very detailed narratives for each aspect of the claim. The idea now is to outline the case without engaging in exhaustive detail, keeping the summary proportionate to the claim’s complexity.
• Relief Sought: A summary of what remedy the claimant wants – often this is the monetary compensation for the losses caused by the alleged negligence. The letter should provide a proportionate breakdown of the damages being claimed. In an architect negligence case, this might include, for instance, the cost of remedial works, delay costs, or other financial losses attributable to the architect’s errors. This breakdown doesn’t need to be a perfect or final calculation, but it should give the architect a ballpark idea of the claim’s value.
• Experts (if any): The names of any expert(s) already instructed by the claimant and the subjects on which they may give evidence. In professional negligence claims, it’s common for the claimant to consult an independent expert (such as another architect or engineer) to review the work and identify where the original architect fell below the expected standard. If the claimant has obtained an expert report or opinion that is central and succinct, the Protocol says it may be provided as it can help explain the claimant’s position. However, attaching extensive expert reports at this stage is usually not expected or required, especially if the report is lengthy – the focus is on a summary of the claim itself. (In practice, many claimants will summarize an expert’s findings in the letter, or attach a short executive summary, to bolster their allegations. Any included expert opinion should be prepared to be disclosed, since this letter is not “without prejudice” or confidential.)
• Protocol Referee: A statement whether the claimant wishes to engage the Protocol Referee Procedure (more on this below). This is essentially an option to have an independent referee oversee the pre-action process. It’s optional and requires both sides’ agreement, but the claimant should flag their willingness or not in the letter.
The Letter of Claim should be a formal letter (often sent by the claimant’s solicitor) and it will not be privileged or without prejudice. This means its contents can be shown to the court later. Therefore, it should be factual, clear, and measured in tone. It’s an opportunity to present a compelling preview of the case to the architect and their insurers, hopefully prompting a productive response or even an early settlement offer.
Practical tips: When drafting a Letter of Claim in an architect negligence case, ensure you clearly identify the alleged failings of the architect. For example, if the architect’s design was flawed (say, failing to meet structural requirements, resulting in costly rework), explain the mistake and why it’s considered negligent (perhaps referencing industry standards or the contract terms). Include key dates and project details to give context. Attach or cite any especially critical documents (e.g. a structural report identifying defects) if they are short and central to the claim. Keep the overall letter focused and concise – the second edition Protocol expects an outline of the case, not a fully pleaded case. However, do provide enough information that the architect can understand the core issues without guesswork. If the matter is particularly technical, a brief explanation in plain language can help (remember that clients or insurance personnel will be reading this too, not just lawyers). Finally, be aware of the 14-day acknowledgment and 28-day response clock that starts once the architect receives your letter – so send it in a way you can track receipt (recorded delivery or email with confirmation) and mark your diary.
The Architect’s Acknowledgment (14 Days)
Upon receiving the Letter of Claim, the architect (defendant) should acknowledge receipt in writing within 14 days. This acknowledgment is typically a brief letter or email back from the architect’s side (often their solicitor, or insurer) saying: “We confirm receipt of your Pre-Action Protocol letter dated XYZ.” In this acknowledgment, the defendant may also provide the name and address of their insurer (if applicable). In professional negligence cases, architects usually carry professional indemnity insurance, and it is common (and wise) for the architect to notify their insurer as soon as a claim is received. The insurer will often appoint solicitors to handle the response. While the Protocol doesn’t force the defendant to disclose their insurer, claimants often ask for confirmation that the insurer has been notified, since an involved insurer can facilitate settlement (insurers have the funds and often an interest in early resolution). The acknowledgment should also state whether the defendant agrees to use a Protocol Referee if the claimant has proposed one. If either side does not want a referee, that procedure won’t apply.
If the defendant fails to acknowledge the Letter of Claim within 14 days, the claimant is entitled to proceed straight to issuing court proceedings without further delay. In practice, a late acknowledgment by a day or two is usually overlooked, but a complete silence beyond 14 days puts the defendant at risk – the claimant can justifiably move forward to sue. For professional defendants like architects (and their insurers), it’s almost always advisable to acknowledge promptly to stay within the Protocol process.
Letter of Response (28 Days)
Next, within 28 days of the Letter of Claim, the architect must provide a Letter of Response to the claimant. This is a detailed reply to the allegations, and it serves as the defendant’s substantive position. The Protocol specifies that the Letter of Response should contain:
• Admissions/Denials: A brief and proportionate summary of the defendant’s response to each claim raised. The architect should state clearly which parts of the claim (if any) are accepted and which are refuted, and on what basis. For instance, the response might admit that a drawing was issued late but deny that it was negligently prepared, or deny that the alleged error caused the claimant’s loss. Each key allegation from the Letter of Claim should be addressed so that it’s clear what is in dispute.
• Counterclaims: If the architect believes the claimant (or someone else) actually owes them money or is responsible for the problem, they can include a Counterclaim in this letter. The counterclaim should also be summarized briefly, following the same format as a claim (facts, legal basis, and relief sought). In an architect negligence context, a counterclaim might be rare but could arise for example if the architect is suing for unpaid fees and the negligence claim was raised as a defence. Another scenario is if the architect feels a different party (like a contractor or engineer) is actually liable – while that might be handled by bringing in that third party rather than a direct counterclaim against the claimant, the architect can signal an intention to involve others. Indeed, the Protocol asks the defendant to name any third parties they are considering involving in a related pre-action process (for example, initiating a separate claim against a sub-consultant).
• Experts: The Letter of Response should list any experts the defendant has already engaged and the issues they are looking into. For instance, the architect’s insurers might hire an independent expert to assess whether the architect’s work was actually negligent or if the claimant’s losses were caused by unrelated factors. Naming the expert (and field of expertise) signals to the claimant that an expert review is underway. (The defendant is not obliged to provide the expert’s full report at this stage, just as the claimant isn’t, but any key findings might be referenced if they bolster the defence.)
• Referee Confirmation: If the claimant asked for a Protocol Referee, the defendant should confirm here if they agree or refuse that process (if they haven’t already done so in the acknowledgment).
The tone and detail of the Letter of Response should be proportional to the claim’s complexity. The second edition Protocol deliberately curtailed the previously lengthy responses – now a concise summary is preferred over point-by-point legal arguments. The response should give a clear outline of the architect’s case, without turning it into full defence submissions; remember, its purpose is to inform discussions and possibly settlement, not to “win” the case at this stage.
Practical tips: From the defendant architect’s perspective, this letter is often prepared with input from their insurer and legal counsel. It’s important to investigate the claims thoroughly yet efficiently within the tight 28-day window. Gather the project documents, emails, plans, and review the timeline of events. If needed, request a reasonable extension from the claimant – most claimants will allow additional time (up to that ~3 month outer limit) for a genuinely complex case, especially if you explain why (e.g. needing an expert’s input). In the response letter, be straightforward: if liability is admitted in whole or part, say so – early admissions can save costs and build credibility. If you contest the claims, provide a brief explanation for each denial (for example, “the roof design met the specified standard; the leaks were caused by poor construction, not design”). Attach key documents if they decisively support your stance, though generally annexes are not required by the Protocol. Also, consider engaging with the claimant’s assertions constructively – if some damages seem valid and others not, it’s okay to admit what you agree with. This can narrow the dispute. Finally, ensure a copy of the Letter of Response reaches the claimant within 28 days; if you miss this deadline without agreement, the claimant is free to sue (and you want to avoid appearing uncooperative).
Counterclaim Response (Claimant, 21 Days)
If the architect’s Letter of Response includes a counterclaim against the claimant, the Protocol gives the claimant 21 days to issue a Response to Counterclaim. This is essentially the mirror of a Letter of Response, but for the counterclaim – the claimant should briefly state their position on the counter allegations (admit, deny, or require clarification). Often, this can be done in a shorter letter, since many counterclaims in these cases might be straightforward (or sometimes tactical). If no counterclaim was made, this step is skipped.
Pre-Action Meeting (and ADR)
After the letters have been exchanged (and any counterclaim addressed), the Protocol expects the parties to come together for a Pre-Action Meeting. This meeting should normally occur within 21 days after the defendant’s final Letter of Response/Counterclaim response. The meeting is a key opportunity for the parties – including clients and insurers – to speak (without prejudice) about the dispute and explore settlement or at least streamline the issues.
The Protocol does not rigidly dictate the format of the meeting; it “is not intended to prescribe in detail” how it’s conducted. It could be an informal round-table discussion, a formal meeting between lawyers, a session including experts, or even a full mediation with an independent mediator. The crucial point is that a genuine effort is made to have dialogue. Those attending should include people with authority to settle or make decisions – for example, the claimant in person (if an individual) or a representative of a client company, the architect or a senior representative of their firm, the insurer’s representative (since any settlement will likely be paid by insurance) as well as the solicitors for each side. This ensures that if a resolution is achievable, the right people are in the room to agree to it.
The aims of the pre-action meeting are clearly outlined in the Protocol and can be summarized as follows:
• Narrow the Issues: Identify and agree on the main issues in dispute. What points are truly contested? For example, the architect might concede a mistake was made on one aspect but dispute the cost consequence; the claimant might clarify they are no longer pursuing a particular allegation. Pinpointing the root causes of disagreement on each issue helps focus any future proceedings.
• Explore Settlement: Discuss whether the case can be resolved without court. This could involve a settlement proposal, a discussion of what each party really needs, or even agreement to try formal ADR like mediation (if the meeting itself isn’t a mediation). Given the costs of litigation, both sides should earnestly consider if a negotiated outcome is possible – especially in professional negligence cases where reputational and financial risks can be high for the architect and a quicker recovery of damages is attractive to the claimant. Sometimes even partial settlement (e.g. agreeing on liability but not quantum, or vice versa) can be reached.
• Plan Efficient Litigation (if needed): If it appears that court action is unavoidable, the meeting is also used to agree on next steps to conduct the litigation efficiently. The parties should strive to comply with the civil procedure overriding objective by planning proportionate litigation. Concretely, this means discussing: what expert evidence will be needed at trial and whether a single joint expert might be appointed (for instance, both sides might agree on one independent expert to assess the building defects, rather than each hiring their own, to save time and cost); the likely scope of disclosure of documents (perhaps agreeing to limit disclosure to certain key categories, and to use electronic document exchange to keep costs down); and any other case management issues (like whether some issues can be resolved by agreement or a streamlined trial). Essentially, even if you can’t settle, you can at least make the impending litigation more focused and less expensive through cooperation at this stage.
It should be noted that everything discussed at the pre-action meeting is generally “without prejudice”, meaning it cannot be later shown to the court as evidence of admissions or concessions, encouraging frank discussion. There are a few exceptions that might later be told to the court – such as the fact that a meeting took place (or if one side refused to attend), who attended, and whether the parties considered or agreed on any form of ADR. These exceptions exist so the court can be informed, if needed, about a party’s cooperation or obstruction in the pre-action phase. For example, if an architect flat-out refused to meet or discuss settlement, the court may later learn of this when looking at costs. Generally, however, the content of the discussions (the offers, admissions, etc.) remain confidential if the case goes on to trial.
If one party unreasonably refuses to attend a pre-action meeting or simply doesn’t engage, the Protocol period will effectively conclude 14 days after the meeting should have happened. At that point, the compliant party can proceed to issue proceedings. It’s in both parties’ interests to have the meeting: claimants can gauge the strength of any defence or willingness to settle, and architects/insurers get a final chance to avoid litigation or limit the issues.
Practical tips: Treat the pre-action meeting as more than a mere formality. Come prepared – if you’re the claimant, have an idea of what you would accept in settlement (your bottom line) and bring any documents that might persuade the other side (perhaps an expert’s short opinion or cost breakdowns). If you’re the defendant architect, this is a chance to possibly save a professional negligence claim from escalating; consider if an apology or a without prejudice offer could be made. Often insurers will take the lead in negotiations for the architect – ensure the insurer’s representative has authority to propose a settlement number if appropriate. Both sides should also be ready to discuss practical solutions, not just legal positions (for instance, is a remedial work contract by the architect an option, or a partial refund of fees, etc., as alternatives to simply paying damages). And if no settlement is reached, try to leave the meeting with clear agreements on how to move forward (e.g., “we will jointly instruct Expert X by next month” or “we agree to limit disclosure to the last 2 years of project emails”). Such agreements can later be formalized in the court process, saving time. Throughout, maintain a professional and constructive tone – remember, this meeting can set the stage for either a cooperative resolution or a hard-fought litigation.
The Protocol Referee Procedure – An Optional Safeguard
One unique feature introduced in the second edition of this Protocol is the Protocol Referee Procedure. This is an optional mechanism where the parties jointly appoint an independent “Referee” (an experienced construction lawyer, typically a senior barrister or solicitor from the TeCSA or TECBAR organizations) to oversee and police compliance with the Protocol. The idea is to have a sort of pre-action “judge” on call to swiftly deal with any issues or misconduct in the Protocol stage. For example, if one party believes the other’s Letter of Claim or Response is woefully inadequate or that the other side isn’t genuinely engaging in the spirit of the Protocol, the Referee can be asked to step in and make recommendations or directions.
Both parties must agree to use a Referee – it’s usually considered for complex, high-value, or highly contentious cases where there’s a lack of trust in protocol compliance. It’s not automatically engaged; one side (typically the claimant) will propose it, and if the other side consents, an application is made to TeCSA/TECBAR. The cost of applying is a fixed fee (currently £3,500 + VAT) which covers the Referee’s fees. This cost is not trivial, but in multi-million construction disputes it may be justified to keep pre-action skirmishes in cheque. The Referee’s role is relatively short-term and focused – they might, for instance, rule on whether a party has complied with the Protocol or order a reluctant party to provide more information, etc. Decisions of a Referee are not usually binding in the way a court order is, but they carry influence and can later be shown to the court if one party has flouted the Referee’s recommendations.
In professional negligence claims against architects, the Protocol Referee is rarely used (since many such claims are moderate in size and complexity). However, it could be useful if, say, a claimant fears the architect will drag out the process or not take it seriously – the Referee adds an authoritative oversight. Similarly, in a very document-heavy case, a Referee might assist by setting reasonable limits or ensuring cooperation in exchanging information. If you think a Referee would help, mention it in your Letter of Claim or response (as required) and discuss it with the other side early. If both agree, TeCSA/TECBAR publish the procedure and list of available Referees on their websites. Remember, this is a tool for the parties’ benefit – it’s entirely voluntary and meant to facilitate, not complicate, the pre-action process.
Consequences of Non-Compliance
The Protocol itself is part of the Civil Procedure Rules regime, and while it’s not law, courts expect parties to substantially comply with it. The Technology and Construction Court (which typically hears architect negligence cases) will inquire at the first case management hearing whether the Protocol was followed. If a party unreasonably failed to comply – for example, ignoring the protocol entirely or causing significant delay without good reason – the court can impose costs sanctions. This might mean that even if that party wins the case, the court orders them to pay some or all of the other side’s legal costs because of their conduct pre-action. However, the second edition has softened the stance on sanctions: it expressly states that cost penalties for non-compliance will be “the exception, not the norm,” and generally only applied for a flagrant or very significant disregard for the Protocol. Minor technical breaches or a slight delay, especially if they didn’t prejudice the other side, usually won’t incur punishment. The rationale is to encourage cooperation rather than create satellite arguments about protocol compliance.
For instance, if a claimant sent an incomplete Letter of Claim but later provided the missing information, the court is unlikely to penalize that. Conversely, if an architect defendant simply ignored the Letter of Claim and forced the claimant to sue without any response, that defendant could face an adverse costs order later even if they defend the claim successfully – the court would view the lack of engagement as contrary to the Protocol’s ethos. In practice, most parties comply because it’s in their own interest – it’s an opportunity to resolve the issue without court or to better prepare for court if it’s inevitable.
One should also note that judges have a degree of discretion. They will look at the overall compliance and whether the spirit of the Protocol was honored. It’s wise for both claimants and defendants to keep a record of their compliance (letters sent, meetings offered/held, etc.). If the other side is not cooperating, you can demonstrate to the court that you tried your best to follow the Protocol. This can shield you from criticism and potentially cast the opponent in a negative light when costs are considered.
Practical Guidance for Architect Negligence Claims under the Protocol
Finally, focusing on professional negligence claims against architects, here are some practical pointers to navigate the Protocol effectively:
• Use the Right Protocol: As straightforward as it sounds, ensure you are indeed following the Construction and Engineering Disputes Protocol for an architect negligence case – not the general Professional Negligence Protocol. The latter does not apply to construction professionals. Using the wrong protocol could cause confusion or delay; an architect (or their insurer) receiving a Professional Negligence protocol letter might respond by pointing out the mistake. So, tailor your approach to the CED Protocol from the start.
• Early Expert Assessment: Consider obtaining an early expert review of the architect’s work. While the Protocol does not require full expert reports at the pre-action stage, a preliminary opinion from another architect or engineer can strengthen your Letter of Claim and help you understand the merits of your case. For example, an expert can opine that the architect’s design fell below industry standards or that a different design would have avoided the problem. You can then include a synopsis of this in your claim letter. If you’re the defendant architect, you likewise may want an expert perspective to rebut the allegations or explain the cause of the issue. Just remember that any expert involved at this stage could eventually be a witness if the case proceeds, and anything you disclose now (like an excerpt of their findings) becomes usable by both sides later.
• Involve Insurers Early: Architects should notify their professional indemnity insurer as soon as a Letter of Claim is received. From the claimant’s side, it’s acceptable to ask the architect to confirm insurer involvement. An insurer’s engagement often means the defence will be handled professionally and that there’s a pot of funds available for settlement if liability is clear. Insurers also might be amenable to mediation or settlement talks, since they have an interest in managing costs. On the flip side, if you’re a claimant, be aware that once insurers are involved, they will scrutinize the claim carefully – you may receive a robust response from specialist lawyers. Don’t let that discourage you from valid claims, but do ensure your case is well-founded factually and legally.
• Be Proportionate and Realistic: One of the Protocol’s themes is proportionality. Tailor the effort to the size of the claim. If your negligence claim against an architect is for a £50,000 defect, it likely doesn’t require a 50-page letter with dozens of appendices – that would only drive up costs unnecessarily. Conversely, a multi-million pound claim involving a building’s design failure will need a bit more detail. Both parties should aim to resolve the dispute as efficiently as possible. That might mean, for example, agreeing to a stay (pause) of the Protocol timetable to try a quick mediation, or exchanging key documents informally without a full court disclosure process. These kinds of cooperative moves are in the spirit of the Protocol.
• Leverage the Pre-Action Meeting: Use the meeting (or mediation) wisely. It’s often the best chance to settle before positions harden. Come prepared to listen and to negotiate. For claimants, if the architect offers a reasonable settlement or some form of remediation, weigh it against the costs and time of litigation. For architects, if there is clear fault, it can be better to settle early and quietly – protracted litigation can increase reputational damage and costs (which might exceed the cost of settlement). Even if no settlement is reached, make sure the meeting covers plans for next steps (experts, documents, etc.) so that litigation, if it follows, is more organized. Document any agreements reached in the meeting and follow up in writing so both sides have a record.
Maintain Professionalism: Pre-action correspondence sets the tone. Keep letters factual and avoid unnecessary antagonistic language. This is particularly important in professional negligence cases – the architect might feel their professional reputation is under attack. A hostile tone can entrench positions. Solicitors should advocate firmly for their clients but remain courteous. Similarly, responses should address the issues without personal defensiveness. Remember, these letters may be seen by the judge later, so a respectful and reasonable approach will reflect well on you.
• Know When to Move On: The Protocol is a means to an end, not an end in itself. If it becomes clear that the parties are at an impasse (for example, the architect flatly denies liability and won’t budge, while the claimant is certain of negligence), it may be counterproductive to prolong pre-action exchanges beyond the required steps. In such cases, once the protocol steps are done, the claimant might decide to issue proceedings and let the court process compel further disclosure or evidence. The Protocol should not be used by either side just to delay a valid claim indefinitely. Conversely, if progress is being made, the parties can agree to extend timelines a bit to keep talking – the court would likely approve of that if it avoids litigation.
By following the Protocol conscientiously and thoughtfully, solicitors and clients dealing with architect negligence claims can greatly increase the chance of an early resolution or, at the very least, head into litigation better informed and on narrower issues. The second edition Protocol provides a clear structure for this pre-action phase – use it to your advantage. Acting reasonably and proactively at this stage not only keeps you in the court’s good graces, but it often saves time and cost, which is ultimately in the best interests of both claimants and defendants.
Further Reading:
Professional Negligence Claims – Overview
Architects’ Negligence Claims
Surveyors’ Negligence – Legal Guidance
Engineers’ Negligence – Understanding Your Rights
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