This judgment arose out of an application by the remaining defendant in the claim, for a stay of the proceedings pending the implementation of the process laid down by the pre-action protocol for construction and engineering disputes.

The claimant engaged Kier Regional Ltd to carry out the fitting out works to its building, which included the provision of an air conditioning system. Kier sub-contracted amongst other things, the provision of the air conditioning system to Haden Young Ltd. The claimant also engaged the defendant to carry out certain professional services in relation to the design of the mechanical and electrical works including the air conditioning system.

A flood occurred which caused damage to the claimant’s equipment in the building. The claimant issued proceedings for damages against Kier and Haden in relation to the flood. Both Kier and Haden denied that they were responsible for any bad workmanship and insofar as the claimant suffered loss and damage, they claim that it was contributable to the claimant and its design team.

To avoid limitation issues, the claimant issued proceedings against its design team. However, the claim against the defendant was contingent on the failures of Kier and Haden being established.

The defendant applied for a stay on the basis that the claimant had not followed the protocol.

The issue before Mr Justice Akenhead related to the extent to which it was appropriate for the court to adopt a pragmatic approach in relation to compliance with the protocol.