Who has the right to remedy?

There is a common misconception amongst many construction professionals that a contractor has an automatic contractual right to return to work to remedy any defects, regardless of their size, in the first instance.

However, unless there is a Defects Liability Period (DLP) contained within the contract, then an employer is under no obligation whatsoever to allow the contractor back on site.

On the other hand, if the contract includes a DLP, then the contractor may have a contractual right to return to carry out remedial works.

Should the employer fail to allow the contractor to return to the site to remedy the defects under the DLP, then this could constitute a breach of contract on the part of the employer. This could then harm any claim the employer makes should the matter reach court. The courts are likely to limit the claim to what it would have cost the contractor to remedy the defects in the first place. It is often less expensive to allow the contractor to rectify any defects than it is to instruct an alternative contractor, so the court will often expect the employer to at least give the contractor the opportunity to remedy any defective works.

However, there may be situations where the relationship between the employer and contractor has broken down to the extent that this is no longer possible. While the court will expect the employer to act reasonably when deciding whether to allow a contractor back on site or not, it will also take into account the relationship between the parties when making a decision.

What is clear is that without a DLP written into the contract, a contractor does not have the automatic right to return to site to remedy defects. However, the situation becomes more complex when dealing with incomplete works as opposed to defects. Consequently, employers and contractors should check their contract carefully and, if in doubt, seek legal advice.

At Palmers Solicitors, we can use our dedicated expertise to draft bespoke and precise contracts, as well as assisting with other related commercial agreements, to help ensure disputes are averted where possible.

Should a dispute become unavoidable, we can advise on the most effective strategy for its resolution, whether that be negotiation, more structured mediation or formal proceedings, such as adjudication, arbitration or litigation.

For more information and guidance, please contact us.