Since 2000 if a party has wanted to bring a claim to the Technology and Construction Court, it has had to comply with the pre-action protocol for construction and engineering disputes. The central requirement of this protocol is the serving of a letter to the proposed defendant containing details of the claim. The proposed defendant then has to respond in writing, after which a meeting should normally take place, at which the parties identify the main issues and see whether or not they can be settled without recourse to litigation. The laudable aim of the protocol is to keep the parties out of court. The protocol is subject to the court's "overriding objective" of dealing with cases justly. Running up costs is deprecated, as is excessive detail. The process must be proportionate to the size of the claim. According to a related practice direction, the court has the power to punish a party that has not complied in substance with the protocol by imposing an order for costs - but only if the non-compliance has led to proceedings being started that might otherwise have been avoided, or has caused costs to be unnecessarily incurred. Mr Justice Akenhead's recent decision in TJ Brent and Another vs Black Veatch illustrates well that the court will adopt a robust and practical approach in this area.
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