Constructive Criticism: Why the pre-action disclosure rules are damaging to the construction industry

Daniel Shaw

December 2011

A paper based on the joint highly commended prize entry in the Hudson Prize essay competition 2010 presented to a meeting of the Society of Construction Law in London on 26th May 2011

The paper proposes that the general rule as to the costs of pre-action disclosure applications, contained in the Civil Procedure Rules 48.1, fails to reduce the overall costs of civil litigation as intended, which is particularly damaging to the construction industry as regular court users. It goes on to suggest a change to the way pre-action disclosure costs are dealt with that would better benefit our litigious and document reliant industry by upholding the costs reducing ambitions of Lord Justice Jackson and his predecessor, Lord Woolf.

Introduction - Pre-action disclosure - The general rule and the exception -Proposed solutions - The case law - Conclusion.

Daniel Shaw is an associate solicitor in the Construction and Engineering Practice Group at White & Case in London..

Text 9 pages.