Pre-Action Protocol Referee Procedure

PRE-ACTION PROTOCOL FOR CONSTRUCTION AND ENGINEERING DISPUTES 

PROTOCOL REFEREE PROCEDURE

The following is a brief summary of the key points of the Protocol Referee Procedure. Reference should of course be made to the Procedure itself.

The parties must have agreed to engage with the Protocol Referee Procedure for it to apply. If it applies, either party may apply to the Chairman of TeCSA for the nomination and appointment of a Protocol Referee. The Protocol Referee shall be a senior member of TECBAR or TeCSA authorised so to act, and the application shall be accompanied by the Application Fee of £3,500 plus VAT.

The application shall set out briefly details of the directions sought by the Applicant in order to assist the parties in participating in and complying with the Protocol; and/or the nature of the non-compliance (no more than 4 sides of A4 pages) together with such other documents as the Applicant intends to rely upon (no more than 1 lever arch folder, single sided copying).  Provision is made for a response within 5 working days of the notice of appointment, and a reply within 2 working days thereafter.

The Protocol Referee reaches a written decision no later than 10 working days after receipt of the notice of appointment (unless extended) setting out any appropriate directions for future conduct of the Protocol process; and/or whether there has been non-compliance with the Protocol and, if so, whether the non-compliance demonstrated a flagrant or significant disregard for the terms of the Protocol and, if so, to what extent. The decision is binding and must be complied with until the dispute is determined by legal proceedings or by agreement.

There are several procedural forms relating to the appointment process, and a flowchart to show how the process is intended to operate. These can all be found below (TeCSA will be administering the process):

       (a)  Application Form

       (b)  Declaration Form

       (c)  Nomination Form

       (d)  Notice of Appointment / Undertaking

       (e)  Flowchart of appointment process