Pre-action conduct

Pre-action conduct

Prior to commencing proceedings, the pre-action phase is an important part of the dispute resolution process. Parties are often trying to investigate or prepare their cases and explore opportunities to resolve the dispute without resorting to litigation. In addition, there are rules which set out particular pre-action steps that the courts expect parties to comply with if they intend to bring proceedings—non-compliance can result in a party being penalised.

For construction and engineering disputes, the parties should follow the process set out in the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol), which is sometimes referred to as the Construction Protocol or PAP. This process is intended to assist parties in understanding the case they are presenting (or having to meet), so that the parties can seek to resolve the dispute prior to commencing proceedings or, if this is not possible, to clarify the issues to be litigated.

Pre-action considerations

There are a number of steps and considerations that should be undertaken at the pre-action stage in order to maximise prospects of success once litigation is commenced. Practice Note: Key considerations at the pre-action stage of a construction

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

TAKE A FREE TRIAL

Latest Construction News

Civil Procedure (Amendment) Rules 2026

The Civil Procedure (Amendment) Rules 2026, SI 2026/97 amend the Civil Procedure Rules 1998. Most provisions commence on 6 April 2026, with two amendments commencing at a date to be determined by other legislation.

Scottish Government publishes Building Safety Levy Expert Advisory Group minutes

The Scottish Government has published minutes from Building Safety Levy Expert Advisory Group meetings held on 4 November 2025 and 28 January 2026, both released on 5 February 2026. The minutes reveal concerns from members that the Levy Free Allowance threshold of 19 units had not been consulted on with stakeholders, with members strongly favouring setting this threshold in primary legislation rather than regulations. Scottish Government officials clarified their intention to set the Levy Free Allowance in regulations alongside rates and confirmed the Minister's commitment to strengthening reporting requirements in the Bill through government amendments expected on 4 February. The Levy commencement has been delayed from April 2027 to April 2028, with indicative rates to be published in June 2026 alongside an updated Business and Regulatory Impact Assessment. The group supported aligning the Scottish approach with the methodology used in England, with the Levy aimed at generating £30m annually. Officials committed to further engagement on cash flow concerns for Build-to-Rent developments and to explore data sharing relating to the Levy Free Allowance.

ACE publishes Currie & Brown report projecting that global construction costs will rise by 2.4% in 2026

The Accelerated Capability Environment (ACE) has published a report by Currie & Brown, forecasting that global construction costs will rise by 2.4% in 2026, with UK costs expected to increase by 3.6%. The cost management and advisory services provider noted that the Autumn Budget introduced no new tax incentives for construction, while wage and tax changes have increased the pressure on the industry.

Scottish Government launches consultation on housing delivery incentives and penalties

The Scottish Government has launched a consultation seeking views on measures to accelerate the build-out of homes on sites already identified for housing development, in response to falling housing starts and completions despite a substantial pipeline of consented land. The consultation supports the Housing Emergency Action Plan and related planning commitments, and examines whether incentives, penalties or other interventions could increase delivery rates, including for small and medium-sized housebuilders, within a plan-led, infrastructure-first framework under National Planning Framework 4. It is informed by evidence that slow delivery is driven primarily by post-consent factors such as market absorption rates, viability constraints, infrastructure costs, public sector risk exposure and limited developer capacity or commitment, rather than by the planning permission process itself. Drawing on previous reviews and research by bodies including the Competition and Markets Authority and the Scottish Land Commission, the consultation outlines potential approaches such as land assembly, public sector-led development, reform of compulsory purchase and sales powers, and policy tools to influence build-out rates, and notes that any future action may require legislative change in the next parliamentary session and would be subject to appropriate impact assessment. The consultation closes on 30 April 2026.