Pragmatism and the pre-action protocol

In Higginson Securities (Developments) Ltd v Hodson [2012] EWHC 1052 (TCC), [2012] All ER (D) 151 (Apr) Mr Justice Akenhead held that potential parties to litigation embarking on the Pre-Action Protocol for Construction and Engineering Disputes must always remember to consider it in the context of the overriding objective. They must not use it as a weapon or a tactic, and they must both seek to cooperate during its implementation. Where the value of a claim is low, it is important that the parties proceed reasonably expeditiously, do not drag the process out and they must keep costs to a reasonable minimum.

The facts

The claimants brought a claim against the defendant architect. The claim arose out of a project for the construction of a new church and a block of nine flats. There were two principal components of the claim. The first was a claim for negligence based on alleged inadequate design and the second was for repayment of fees alleged to have been overpaid or overcharged. The value of the claim was slightly under £70,000 but, as Akenhead J pointed out, the parties’ costs were likely substantially to exceed the amount in dispute.