Construction Contract Disputes & The Pre-Action Protocol for Construction and Engineering Disputes

Pure Business Law are specialists in construction disputes and contract drafting.

Construction disputes can be legally and technically complex . We are experienced in handling construction disputes for construction companies, surveyors, consulting engineers , contractors and employers. We are experienced in:


  1. Works defects;

  2. Loss and expense;

  3. Claims against the employer;

  4. Non-payment by the employer;

  5. Extensions of time;

  6. Delays in completion of works ;

  7. Practical completion;

  8. Defects liability period;

  9. Adjudication;

  10. Mediation;

  11. Litigation;

  12. Arbitration; and

  13. Technology and construction court claims.

Has your builder disappeared without completing the works?

Do you feel your building work has not been completed completely or correctly?

Is the work taking too long to complete?

Are the works of low quality?

Have you been charged more than your builder or contractor told you would be charged?

We can help at any stage of the process, from preparation of contracts prior to entry into the contract, during the life of the project or at project end if a building dispute arises. Our lawyers will assist you in resolving your construction disputes. Having your contracts drafted by a specialist construction professional is important as many construction disputes arise from badly drafted contracts or ambiguous contract clauses.


Our clients


We are experienced in working with parties involved in construction work under the standard form contracts like JCT, NEC, ICE, FIDIC, MF/1, .   Our clients include, landlords and tenants, owners, occupiers, developers, contractors, subcontractors, suppliers and manufacturers of equipment. Delays and low-quality work cost money and can lead to difficulties in reaching a successful outcome.


Fixed fee construction solicitors


Contract Reviews:

We offer a simple fixed fee service for reviewing your construction contracts. We will check your draft contract and highlight clauses or areas of concern that may result in the exposure of your business to risk and  financial costs.

​Our specialist construction lawyers can review:

  • Your letters of appointment and building contracts

  • Contract novation and assignments

  • Commercial and residential construction agreements

  • Bonds, warranties and guarantees

  • Compliance updates and issues

  • Reasonable exclusion and limitation clauses

  • Risk management




Our specialist construction solicitors can:

  • Prepare Terms of Business (protective) to cover your commercial construction projects - (fixed fees);

  • Advise on Construction disputes - (fixed fees);

  • Handle your construction litigation - (fixed fees and hourly rates);

  • Prepare bespoke business and employment policies to cover areas such as Anti-bribery, Equality and the Modern Slavery Act - (fixed fees);

  • Deal with your unpaid invoices and debt recovery (fixed fees);

  • Provide general legal advice for sole traders in the building field and tradespeople- (fixed fees); and

  • Advise on construction adjudication, mediation and arbitration- (fixed fees)

What is the Pre-Action Protocol for Construction and Engineering Disputes (aka Construction disputes Protocol)?


When does the Protocol apply?


The "Pre-action Protocol for Construction Disputes and Engineering Disputes" covers all construction and engineering disputes including professional negligence claims against construction professionals eg engineers, surveyors and engineers.


The Protocol set standards which the parties to a construction or engineering dispute are expected to adhere to before a claimant issues legal proceedings. It encourages the parties to exchange information early on and consider using alternative dispute resolution methods to resolve a construction dispute rather than incurring unnecessary legal costs on a matter that could have been resolved without the issue of legal proceedings.


There is a separate Pre-Action Protocol for Professional Negligence disputes against professionals other than construction professions.


The Protocol provides a number of steps for parties to follow before they litigate a construction dispute. These steps are designed to avoid unnecessary litigation proceedings and the incurring of unnecessary legal costs.


It is in the parties interests to follow these steps. Whilst it is not compulsory for parties to a construction dispute to follow the Pre-action protocol you may be penalised by the Court if you did not follow the protocol before issuing legal proceedings. We therefore always advise our clients to follow the Pre-action Protocol.


The Pre-Action Protocol can be found by clicking here. Whilst we recommend that you read the Protocol fully, you may decide no to do so. We have therefore provided a summary of the Protocol for your guidance.



Time limits


Construction disputes can arise several years after the completion of a project.

If you are a claimant, you must ensure you bring your claim within the applicable “Limitation period”. Where the construction contract has been executed as a deed the limitation period to bring a claim for breach of contract is 12 years from the date of breach of the contract.


If you are a defendant it is important to be aware of the time limits as the Protocol stipulates strict compliance with the prescribed time limits: eg the defendant must acknowledge the letter of claim within 14 days of receipt and provide a substantive response letter within 28 days of receipt. The parties must meet within 21 days after receipt of the response letter or if there is a counterclaim 21 days after receipt of the claimant’s letter of response to the counterclaim. The Protocol also provides that the parties may agree extensions of time for compliance with any of the prescribed steps however no extension can exceed 28 days in total.


The complexity of your dispute will dictate the complexity of the issues involved. If it is as simple as a dispute with a builder for the cost of building work completed by the builder, your claim may be straightforward. However, as the details become more complex, the methods of resolution may also increase in complexity. Ideally you should read the Our first step when you instruct us is to try to negotiate a resolution of the dispute. 5-

Pre-Protocol stage


Check the Contract : Before triggering the Protocol by sending a Protocol Letter in compliance with the Pre-action Protocol, you must check your contract carefully and in particular the contractual provisions governing the resolution of disputes.


Even if the dispute resolution requirements in the contract are not mandatory it is advisable to exhaust them before triggering the Protocol as it may be a cheaper and quicker dispute resolution process.


If the requirements are mandatory eg the dispute must be determined by an adjudicator as a pre-condition to any court action, you must complete all the steps of the contractual dispute resolution process before issuing your Protocol Letter of Claim as failure to do so can result in the court granting a stay of proceedings and ordering the claimant to complete the prescribed steps before coming back to court.


Pre-Action Protocol stage


What are the requirements of the Protocol?


Step 1 – Issue of Letter of Claim – The claimant should send each proposed defendant a letter of claim before commencing legal proceedings. The Protocol sets out what the letter of claim should contain.

Step 2 - Acknowledgment by the Prospective Defendant(s) – The defendant has 14 days to acknowledge receipt of the Letter of Claim. If the defendant does not acknowledge receipt of the letter of claim within 14 days, the claimant can commence court proceedings immediately.


Step 3- Response to Letter of Claim by the Defendant - The defendant has 28 days in which to respond to the letter of claim. The response should set out amongst other things, which facts are agreed and which are not; the claims accepted or rejected by the defendant and the defendant’s reasons for rejecting a claim; whether the defendant intends to make a counterclaim, the names of any experts already instructed by the defendant and on whose evidence he intends to rely identifying the issues to which that expert’s evidence will be directed.


Step 4 - Objections on jurisdiction or to a named party etc can be raised by the defendant within 28 days. If the defendant does not raise an objection at this stage, he is not prevented from raising an objection later. However, the court can take such failure into account when assessing costs.


Step 5- Claimant’s response to Counterclaim (if any) The claimant has 28 days from date of defendant’s response to respond to any counterclaim raised by the defendant.


Step 6 - Experts/Pre-action Meetings – normally 28 days after receipt by claimant of defendant’s letter of response or after the claimant’s response to the counterclaim if any. Purpose of this meeting is for the parties to try to agree the main issues, identify the root cause of disagreement in respect of each issue and consider if issues might be resolved without the need for court proceedings.


Step 7 – Consider Issue of Legal Proceedings if no possibility of settlement


Step 8 – Issue proceedings - via solicitors or personally.

Costs must be proportionate


The Protocol requires costs incurred at the Protocol stage to be proportionate to the complexity of the case and the amount of money at issue. The parties must not use the Protocol to generate unnecessary costs or as a device to obtain an advantage.


Contract Reviews :

We offer a simple fixed fee service for reviewing your construction contracts. We will check your draft contract and highlight clauses or areas of concern that may result in the exposure of your business to risk and  financial costs.

​Our specialist construction lawyers can review:

· ​Your letters of appointment and building contracts

  • Contract novation and assignments

  • Commercial and residential construction agreements

  • Bonds, warranties and guarantees

  • Compliance updates and issues

  • Reasonable exclusion and limitation clauses

  • Risk management


Specialist Construction Law Solicitors


How Pure Business Law can help?​


Need a Construction Agreement reviewed by a solicitor? Do you have a construction dispute? Contact our construction lawyers today by telephone on 01234 938089 or by email at enquiries@purebusinesslaw.co.uk with your requirements.


We are specialist Construction Law Solicitors based in Bedford and operate nationally.


If you would like to discuss anything raised in this article, please contact us and speak with one of our solicitors. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England & Wales.


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Pure Business Law is the trading name for Pure Business Law Ltd-a private limited company registered in England & Wales with company registration number 10405413. Registered office and Principal place of business : Excel House, 3 Duke Street, Bedford. MK40 3HR. VAT number 265 5386 75.

 

 

Pure Business Law is authorised and regulated by the Solicitors Regulation Authority (SRA number 635679)- we are governed by the SRA's  professional rules which may be found at www.rules.sra.org.uk. A list of our directors is available on request.  The term "director" denotes a shareholder or director of the company or an employee or consultant who is a lawyer with equivalent standing and qualifications. Calls may be recorded for security and training purposes.

 

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