Well, actually, I have a horrible feeling that Her Majesty would much prefer you to go to blazes and take your dispute with you. There are some great big hints that the High Court doesn't want you to come anywhere near the place. It is just as though Marks & Spencer put up a sign saying: "Try buying your socks and pants somewhere else first." Or maybe your local hospital asks you to get your broken neck mended at Boots. The reason for this unfriendliness, of course, is that courts are expensive to run, so if we could get rid of the customers, we could save oodles of public expenditure.
On 2 October, a note was issued by the High Court, called the Protocol for Construction and Civil Engineering Disputes. The front page barks an unpleasant reminder; it is not only for construction claims, but also for "professional negligence claims against architects, engineers and quantity surveyors". Boy, oh boy, I bet it makes all you folk very happy to be reminded that the next professional negligence claim is just around the corner. But take heart, because this new protocol insists that those complaining cannot, in fact must not, begin legal proceedings until some hoops have been jumped through. In other words, "Shop somewhere else, please."
Let me tell you how this new rigmarole works (come to think of it, why didn't they call it "the new rigmarole" instead of the new protocol?). First of all, in the future you will not begin court proceedings out of the blue. Instead, you will engage in what is called a "pre-action exchange of information". Then will follow a "pre-action investigation of the parties". After this comes a "formal pre-action meeting with the other party". By the way, this formal meeting will occur at least once, but the implication is that if it takes more meetings to look under the stones, then so be it. And, at these meetings, the parties will continue exploring. This means that you will try to find every possible alternative shop before visiting the High Court.
The new rigmarole even tells you what is expected of these formal pre-action meetings. First, the parties themselves must turn up, not just their lawyers. Not only that, but if the party is a company, organ grinders only are allowed; it is no good sending the monkey because monkeys haven't got the power to compromise, settle the dispute and sign an agreement then and there. Oh, it's all right for a lawyer or two to come too, but they must remember not to get in the way.
It is just as though Marks & Spencer put up a sign saying: “Try buying your socks and pants somewhere else first”
Another must at the formal pre-action meeting is the approval of a representative of any disclosed insurance company lurking in the background, as this cove may be the organ grinder. The protocol actually includes a note that if a claims consultant represents a main contractor or subcontractor, that outfit, too, will turn up. Put shortly, anyone who is important to the attempt to settle rather than go to court will turn up. The whole idea is to hammer out a settlement, or if that doesn't happen to pick another forum, device or system to settle the dispute. But will it work?
Imagine you have organised the "men, machines, materials" and completed the job, but the customer refuses to pay that last 10 grand. You are, as a result, now ready to either strangle the tyke or demolish his new edifice around his ears. The court protocol has other ideas. It now wants you to spend time and money running around the country trying to get him to pay up or compromise at a lower figure. I can see another 10 grand being spent in organising the meetings; you turn up with your solicitor and happily chat your way through coffee, biscuits and pound notes, then stand up and say, "see you in court".
So, if all these efforts to stay out of court fail, the protocol grudgingly caves in. It sulkily suggests, in a sort of "if you must" mood, that you will at least discuss and agree to reveal documents to the other party at an earlier stage than ordinarily happens in litigation, that you will then discuss and agree whether to use a joint expert or not, and that you will also discuss and agree a procedure in the litigation with the aim of minimising cost and delay.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or e-mail him on firstname.lastname@example.org.