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Defective Construction Work

ISBN: 978-1-4443-0237-0
224 pages
January 2009, Wiley-Blackwell
Defective Construction Work (144430237X) cover image
Defective construction work, whether the result of inadequate design, faulty workmanship or poor materials – or some combination of these failings – is a frequent cause of legal disputes. Someone is usually to blame, either the builder or one or more of the professional consultants, or even the entire project team. It is important therefore that the project team should possess a good working knowledge of their responsibilities and liabilities.

Written by a solicitor with over twenty years of experience of building disputes, this book examines the responsibilities and liabilities of the project team when defects occur. It sets out the background role of the common law and statute and includes detailed discussion of important case law affecting the construction process from inception through to completion, together with a consideration of the impact of letters of intent, 'no contract' situations, and specific provisions of model conditions of contract.

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Preface.

Glossary.

1 Definition and categorization.

1.1 Definition of “defect”.

1.2 Qualitative defects.

1.3 Patent/latent defects.

1.4 Reasonable examination.

1.5 Importance of distinction between patent/latent defects.

1.6 The purchaser and the project team.

2 Common law, statutory and contractual rights.

2.1 Common law.

2.2 Statute.

2.3 Contractual rights.

3 Contracts – an overview.

3.1 Function.

3.2 The basics.

3.2.1 Simple contracts.

3.2.2 Deeds.

3.2.3 Distinction between simple contracts and deeds.

3.3 Express terms.

3.4 Implied terms.

3.4.1 Common law terms.

3.4.2 Supply of Goods and Services Act 1982.

3.4.3 Housing Grants, Construction and Regeneration Act 1996.

3.5 Exclusion of Implied Terms.

3.6 Exclusion clauses.

3.7 Risk allocation.

3.8 Model conditions.

4 No Contact/Restitution.

4.1 Restitution.

4.2 Restitution and defects.

4.2.1 The standard of work.

4.2.2 The ‘usual standards’.

4.2.3 Fitness for purpose.

4.2.4 The Defective Premises Act 1972.

4.2.5 Failure to complete.

4.2.6 Cross-claims.

4.2.7 Latent defects.

5 Letters of Intent.

5.1 Function.

5.2 Legal analysis.

5.3 Implications where defects occur.

6 Tort – an overview.

6.1 Negligence.

6.1.1 Persons and property.

6.1.2 Pure economic loss.

6.2 Complex structures.

6.2.1 A theory?.

6.2.2 An exception?.

6.2.3 A test?.

6.3 Economic harm.

6.3.1 A concurrent duty.

6.3.2 Third parties.

6.3.3 The tests.

6.3.3.1 Assumption of responsibility.

6.3.3.2 Proximity, foreseeability and fairness.

6.3.3.3 Incrementalism.

6.3.3.4 Which test?.

6.4 Builders and professional consultants.

6.4.1 Builders.

6.4.2 Professional consultants.

6.4.3 Liability to third parties.

6.4.4 Conclusion.

7 The Defective Premises Act 1972.

7.1 Application.

7.2 Fitness for habitation.

7.3 Exclusion.

8 Third Party Rights.

8.1 The exception.

8.2 Agency.

8.3 Assignment.

8.4 Novation.

8.5 Statutory third party rights.

8.6 Collateral contracts.

8.7 Tort.

9 Statutory requirements.

9.1 The Building Act 1984.

9.2 Building regulations.

9.3 Construction products.

9.4 Workplace safety regulations.

9.5 CDM regulations.

9.6 Relationship with contractual obligations.

10 The builder’s obligations - design, workmanship and materials.

10.1 Buildability, durability and maintenance.

10.2 Workmanship.

10.2.1 Care & skill.

10.2.2 Specified standards.

10.2.3 Inspection of materials.

10.2.4 Duty to warn.

10.2.4.1 An implied duty.

10.2.4.2 An aspect of care and skill.

10.3 Materials.

10.3.1 Description.

10.3.2 Satisfactory quality – history.

10.3.3 Satisfactory quality – scope.

10.3.4 Satisfactory quality – relevance of selection.

10.3.5 Fitness for purpose.

10.4 Design.

11 The builder’s obligations - defects before completion.

11.1 Temporary disconformities.

11.1.1 The theory.

11.1.2 The theory confined.

11.1.3 Reconciling the cases.

11.2 Opening up the work.

11.3 Defects and interim payment.

11.3.1 The contractual position.

11.3.2 Interim valuations, certificates and payments.

11.3.3 The effect of the HGCRA.

12 The builder’s obligations - defects at completion.

12.1 Scope of work to be completed.

12.1.1 Indispensably necessary work.

12.1.2 Contingently necessary work.

12.2 Completion.

12.2.1 The common law concept.

12.2.2 Substantial completion.

12.2.3 Practical completion.

12.3 Snagging.

12.4 The effect of practical completion.

12.5 The ICE, NEC3 and MF/1 conditions.

12.6 The JCT Major Project Construction Contract.

12.7 The provision of information prior to practical completion.

13 Defective works post completion.

13.1 The common law.

13.2 Defects liability period.

13.2.1 Duration.

13.2.2 Snagging.

13.2.3 ‘Defects arising’.

13.2.4 Compensation instead of repair.

13.2.5 Instructions.

13.2.6 Making good.

13.3 Retention money.

13.4 Retention bonds.

13.5 Final certificates.

13.5.1 The JCT SBC conditions.

13.5.1.1 Qualifications to the conclusivity rule.

13.5.1.2 The class of defects affected.

13.5.2 The ICE conditions.

13.5.3 The MF/1 conditions.

14 The Professional Team.

14.1 Membership of a professional body.

14.2 The structure of the team.

14.3 Duties.

14.3.1 Reasonable care and skill.

14.3.2 Fitness for purpose.

14.3.3 Concurrent duty of care.

14.4 Buildability, durability and maintenance – the designer’s obligations.

15 Architects/Engineers.

15.1 Design.

15.2 Selecting builders and other specialists.

15.3 Supervision.

15.4 Periodic Inspection.

15.5 Certification.

15.6 Design review.

15.6.1 Stage one: up to implementation.

15.6.2 Stage two: implementation to practical completion.

15.6.3 Stage three: after practical completion.

15.7 Defects investigations.

15.8 Honest reporting.

15.9 Termination of performance.

16 Surveyors, Project Managers & others.

16.1 Project managers.

16.2 Quantity surveyors.

16.3 CDM Co-ordinators.

16.4 Clerk of works/engineer’s representatives.

17 Compensation.

17.1 Abatement.

17.2 Compensation.

17.2.1 Cost of reinstatement.

17.2.2 Diminution in value.

17.2.3 Reinstatement and diminution.

17.2.4 Date of assessment.

17.3 Betterment.

17.4 Mitigation.

17.5 Parasitic losses.

17.6 Distress and inconvenience.

17.7 Contribution.

17.8 Contributory negligence.

18 Remedies/damages/limitation.

18.1 Breach of condition.

18.2 Repudiation.

18.3 Express termination provisions.

19 Limitation.

19.1 Contract.

19.2 Tort.

19.2.1 The primary limitation period.

19.2.1.1 Physical damage.

19.2.1.2 Economic damage.

19.2.1.3 Reconcilliation of the cases.

19.2.2 The secondary limitation period.

19.3 Contractual limitation provisions.

19.4 Limitation and contribution proceedings.

20 Dispute resolution.

20.1 Litigation.

20.2 Arbitration.

20.3 Adjudication.

20.4 Expert Determination.

20.5 Alternative Dispute Resolution.

Table of casesIndex

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Kevin Barrett practised as a solicitor specialising in construction law for over 20 years firstly with the niche practice Neil F. Jones & Co and latterly with the construction and engineering team at Wragge & Co. During that time he acted for parties in connection with disputes concerning defects in buildings and engineering works, as well as writing and lecturing extensively on subjects relating to construction law. In 2008 the author retired from Wragge & Co in order to write this book and to practice as an independent arbitrator, adjudicator and mediator in connection with construction disputes. He can be contacted at kevinbarrett@blueyonder.co.uk
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* building defects a major cause of construction disputes

* written by a construction solicitor, this book examines what is often a complex situation of rights and obligations

* includes extensive case law and new legislation

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"The book is written in a clear style and uses plain English wherever possible. … Even for solicitors like me who claim to have some expertise in this field, it was refreshing to read a book which deals comprehensively with defects in such a clear manner." (The Academy of Experts, Summer 2009)
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