New look TCC Pre-Action Protocol becomes optional but has more teeth

United KingdomScotland

A new edition of the Pre-Action Protocol for Construction and Engineering Disputes has been formally published today and is expected to come into force on 9 November 2016.

The new Protocol incorporates some noteworthy changes:

  • Parties can contract out of the Protocol provided all parties agree.
  • Parties can now agree to use a Protocol Referee Procedure to resolve disputes about the implementation of the Protocol.
  • The Court can only impose cost sanctions in exceptional circumstances, such as a flagrant disregard for the Protocol.
  • The application of the Protocol is intended to be quicker, shorter, and less expensive, with a greater emphasis on proportionately.

Please click here for a comparative table setting out the key changes to the Protocol, together with a summary of the new Protocol Referee Procedure. A marked-up version of the new Protocol showing amendments from the previous version can also be accessed here.

References: Pre-Action Protocol for Construction and Engineering Disputes, 2nd Edition