Who has the right to remedy?

If work on a site is found to be defective, can a contractor insist on returning to put these problems right?

There is a common misconception amongst many construction professionals that the 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 the employer is under no obligation whatsoever to allow the contractor back on site.

If, on the other hand, the sub-contract does include a DLP then the contractor may have a contractual right to return to site and carry out remedial works. Should the employer fail to allow the contractor to return to site to remedy the defects under the DLP then this may be deemed as a breach of contract on the part of the employer or at the very least will amount to a failure to mitigate the employer’s potential claim should the matter reach court. In such circumstances, it is likely that the courts will limit the claim to what it would have cost the contractor to remedy the defects (Pearce and High Ltd –v- Baxter).

The employer should give consideration to their duty to mitigate the losses that they have incurred and given that it is often less expensive for the contractor to rectify defects than it is to instruct an alternative contractor, the courts will often expect the employer to at least give the contractor the opportunity to return and 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. In Iggleden –v- Fairview New Homes, Mr Justice Coulson stated that “it would take a relatively extreme set of facts to persuade me that it was appropriate to deny a homeowner financial compensation for admitted defects, and leave him with no option but to employ the self-same contractor to carry out the necessary rectification works”.

Therefore, although employers are often expected by the courts to act reasonably when considering whether to allow a contractor to return to site, the court will take into account the relationship between the parties when making a decision.

What is clear is that without a DLP contained within the sub-contract, a contractor does not have the automatic right to return to site to remedy defects. If in doubt, employers and contractors should check their sub-contract carefully and seek legal advice.

For further information, please contact Adam Davis at Palmers on 01268 240000 or email adamdavis@palmerslaw.co.uk.