Construction Disputes – Defective Works

Are there defective works in your construction project?

One of the most common areas of dispute in construction projects is defective work being carried out at the property. Berry Smith can assist either party in such a dispute.

What is a dispute over defective works? What is the standard of works required?

Generally, contractors must complete works with reasonable skill and care. This means that good practice and any project specifications must be followed. Whether the end-product of the works is defective or not may not be clear.

Defects in the works could have been caused by something other than the quality of workmanship. Whether a contractor is responsible for the design of the works, and the quality of the products used, is subject to the terms of the contract.

What should you do where works are allegedly defective?

Defects can arise in a variety of ways. They can present themselves immediately or arise long after completion. They may or may not require urgent remedial works.

Generally, a Court or Adjudicator will require independent expert evidence to decide on the standard of works carried out. This should be provided by an expert witness experienced in giving evidence in accordance with the Civil Procedure Rules. The evidence of a contractor remedying the works or Building Control sign off will not be conclusive.

Expert evidence will be particularly important if it is difficult to establish the cause of the defects. For example, an employer may need to claim against their architect for negligent designs or a Contract Administrator for signing off defective works.

If works require immediate rectification, photographs should be taken and, where possible, the other party should be invited to inspect the works before remedial works are carried out.

The contract should be reviewed throughout this process. The contract may contain a defects maintenance or rectification period. The contractor may have a right to return to attempt to remedy the defects and refusal to allow this can count against an employer.

If defective work can be established in breach of contract, the employer will be entitled to the reasonable cost of repairing the defective works. A successful claimant will be placed in the position it would have been had the works been completed properly. It must act reasonably to reduce its loss and cannot be placed in a better position than it otherwise would have been.

The contract may dictate the forum for hearing disputes, which may be Court proceedings, adjudication, arbitration or expert evaluation.

Before a claim for defective works can be started, a claimant should send a Letter of Claim under the Pre-action Protocol for Construction Disputes. This enables both parties to state their case before formal proceedings are commenced.

It is advisable to discuss any potential concerns with a solicitor as early as possible. We regularly assist contractors and employers in disputes regarding defective works.