Higginson Securities (Developments) Ltd & Anor v Hodson

The Pre-Action Protocol for Construction and Engineering Disputes must be applied in the context of the overriding objective. It is not a tactical device or an excuse for disproportionate cost and delay. A pre-action meeting is normally expected, but the Protocol does not make one absolutely mandatory in every case. Responsibility for arranging it rests on both parties. Once proceedings have begun, the court should adopt a pragmatic and commercially realistic approach, balancing the value and complexity of the claim, the likely costs, the procedural timetable and the parties’ conduct. In a low-value claim, a short stay may be appropriate to permit a meeting or mediation, but an application founded on rigid adherence to the Protocol may itself be disproportionate.

The claimants brought a claim of less than £70,000 against an architect for professional negligence, alleged overcharging and repayment of overpaid fees. Proceedings were issued before the parties had held the pre-action meeting contemplated by the Pre-Action Protocol for Construction and Engineering Disputes.

The defendant applied for a stay so that the Protocol process, including a without prejudice meeting, could be completed. The claimants opposed the application, relying on their offers to meet and arguing that the defendant’s approach was disproportionate. The central issue was whether the proceedings should be stayed to permit further Protocol compliance.

1. Application dismissed. The defendant was required to serve its Defence within 14 days, followed by a four-week stay to enable a without prejudice meeting or mediation.
2. The Protocol must be read with the overriding objective under the Civil Procedure Rules 1998. Parties must co-operate, proceed expeditiously and keep pre-action costs proportionate. The Protocol must not be used as a weapon, tactic or means of generating unnecessary cost.
3. The Protocol’s wording that the parties should normally meet does not make a meeting mandatory in every case. It establishes a default expectation, displaced where there is a reasonably good reason not to meet. Both parties must seek to arrange the meeting. A party cannot insist rigidly on Protocol compliance while failing to take practical steps to achieve it.
4. The court should take a pragmatic and commercially realistic approach to non-compliance. In a low-value claim, the likely cost of the application and the effect on the timetable are important considerations. A short stay and an extension of time for the Defence were sufficient to preserve the defendant’s position while facilitating settlement discussions.
5. The defendant’s application was disproportionate. Its costs, incurred before service of a Defence, were already substantial compared with the value of the claim. The defendant was ordered to pay its own costs and £3,500 of the claimants’ costs, summarily assessed. The court also indicated that transfer to the County Court should be considered.