This was an application for a stay of proceedings on the grounds of non compliance with the Pre-action Protocol for Construction and Engineering Disputes. Cundall Johnson & Partners LLP (“Cundall”) were a firm of consulting engineers. Whipps Cross University Hospital NHS Trust (“Whipps”) was an NHS Trust responsible for Whipps Cross Hospital. Whipps embarked upon a series of construction projects to redevelop and improve the hospital.

Two preliminary construction projects proceeded: first for the demolition of certain building (the “enabling works”) and secondly for the construction of a new energy centre to replace the existing boiler house (the “EC works”).

In relation to the enabling works in early March, Cundall sent a letter to Whipps’ director of finance and administration requesting payment of five outstanding invoices. Cundall responded requesting Whipps forward it copies of the relevant appointment documents. Cundall’s solicitor responded enclosing an illegible fees schedule and its’ covering letter. Correspondence then passed between Cundall’s solicitor and Whipps’ solicitor. Whipps maintained that Cundall’s response forwarding the illegible fees schedule was not satisfactory and refused to attend a meeting until proper details were provided. Cundall then issued proceedings.

In relation to the EC works, Cundall’s solicitors wrote to Whipps’ solicitors claiming unpaid fees. Correspondence regarding Cundall’s entitlement to bring adjudication proceedings then ensued. At no point in this correspondence was there any coherent summary of Cundall’s claim in respect of the EC works. Proceedings were then issued.

Should the proceedings be stayed to enable the parties to attempt settlement, on the ground that Cundall had failed to comply with the Pre-Action Protocol or the Protocols Practice Direction?