Alfred McaLpine Capital Projects Ltd v Siac Construction (UK) Ltd & Ors

A Part 20 claimant should comply in substance with the Pre-action Protocol for Construction and Engineering Disputes. The Protocol applies even where a party is brought into existing proceedings after the original pre-action process. There is no universal rule requiring a stay for non-compliance. The court should balance the new party’s entitlement to the benefits of the Protocol against the existing timetable and the efficient management of the litigation. Relevant considerations include the timing and certainty of joinder, information already provided, the scope of the claim, the effect of a stay, the possibility of costs compensation, and whether equivalent protection can be achieved within the existing timetable. Non-compliance may be addressed by costs, requests for information, mediation or adjusted directions. A stay or refusal of joinder is therefore discretionary and fact-sensitive.

McAlpine claimed substantial damages from SIAC arising from alleged defects and breaches in façade works at Onslow House. SIAC brought Part 20 claims for contribution or indemnity against professional parties, including Norman, Powell Tolner, White Young and Parker. McAlpine applied to join Norman as a defendant in the main action. Norman applied for a stay of SIAC’s Part 20 proceedings on the ground that SIAC had not complied with the Pre-action Protocol. The court also considered the related position of White Young and Powell Tolner.

The central issues were whether the Protocol applied to additional parties introduced into ongoing multi-party construction litigation and what procedural response was appropriate where compliance had been incomplete.

1. The court held that a Part 20 claimant is obliged to comply in substance with the Pre-action Protocol for Construction and Engineering Disputes. The reasoning in Daejan Investments Ltd v Park West Club Ltd [2004] BLR 223 was respectfully agreed with.

2. There is no simple formula governing additional parties brought into an ongoing action. The relevant case-management considerations include:

   • when joinder became likely;
   • what information was provided, and when;
   • the new party’s role in the litigation;
   • the effect of a stay on the trial timetable;
   • whether justice requires a new trial date;
   • whether loss can be compensated in costs; and
   • whether the new party can receive equivalent protection within the existing timetable.

3. The court must balance the new party’s procedural protection against the need to maintain the existing timetable and avoid prejudice to existing parties. These considerations are consistent with the overriding objective in Part 1 of the Civil Procedure Rules.

4. Norman had received substantial information about the dispute, although no formal Protocol letter had been sent. A stay of about two months would jeopardise the January 2007 trial. The Part 20 claim form conveyed information equivalent to a Protocol letter, further information could be requested, and the scheduled mediation could perform functions similar to the Protocol meeting. Any loss caused by non-compliance could be addressed by costs. Norman’s application for a stay was therefore refused.

5. McAlpine had also failed to comply fully with the Protocol before seeking to join Norman. Nevertheless, Norman’s practical difficulties principally arose from administration, loss of staff and documents, rather than Protocol non-compliance. Permission was granted to join Norman as a defendant. Norman could apply to alter the timetable or trial date after receiving the amended pleadings.

6. No stay was justified for the Part 20 proceedings against Powell Tolner. White Young’s consensual joinder was left subject to any application after service of the amended particulars of claim.

First-instance decision. No appellate history is stated in the judgment.