What Price Pre-Action Protocols outside Litigation?

Declan O'Mahony, ichard Anderson and John Tackaberry QC

December 2005

A discussion paper based on talk given to the Society of Construction Law north west branch on 1st November 2005.

The authors describe this as a 'question' paper to provide a framework for discussion, asking 'should adr practitioners seek to reflect the trend in court practice and procedure by requiring parties to comply with the equivalent of a pre-action protocol before commencing formal adr processes?'They consider how the TCC pre-action protocol might be adapted for use an arbitration protocol and appended to the paper is a draft 'Arbitration Protocol for Construction and Engineering Disputes' based on the TCC protocol.

Introduction - ole of pre-action protocols - Which modes of adr are suited to protocols - Adjudication - The background to adjudication - What adjudication was intended to be - What adjudication has become - How might this system of dispute resolution be assisted generally? - The principle of a preliminary procedure - Is there any sensible purpose served in adapting the court protocol for adjudication? - What would the effect be of introduction a pre-adjudication protocol? - Would a pre-adjudication protocol promote settlement? - Is there a case for a pre-adjudication protocol on case management grounds? - Protocols in arbitration - Can a construction contract impose an obligation on the parties to adjudication disputes before entering into arbitration or litigation? - If a contract contains a Scott v Avery clause requiring adjudication before arbitration, are there any circumstances where a party can ignore this provision? - What is the ideal shape of a pre-arbitration protocol? - elationship with other adr processes - Early evaluation in arbitration - Conclusion.

The authors: Declan O'Mahony BA(Hons), FCIArb is a barrister and arbitrator practicing in London; ichard Anderson LLB(Hons), FCIarb is a barrister practicing in London and Glasgow, arbitrator, adjudicator and author of four books on adjudication and John Tackaberry QC, MA, LLM, FCIArb, FFB is a practicing barrister, arbitrator, adjudicator and mediator, principal editor of Bernstein's Handbook of Arbitration and Dispute esolution Practice, and the founding President of the Society.

Text and draft Protocol: 19 pages

PDF file size: 92k