Must a contractor remedy defects omitted from the original defects schedule?
Omission from the first schedule does not ordinarily extinguish liability for defective work. It may, however, affect the contractual right to require the contractor to return, the recoverable remedial cost and the administration of the defects procedure.
The underlying liability usually remains, but the contractual remedy and recoverable cost require separate analysis
A defects clause commonly gives the contractor an opportunity to correct notified defects; it does not, without clear wording, release liability for defective work omitted from a schedule or notified late. The employer may therefore retain a damages claim, subject to proof, causation, mitigation and limitation. If the employer bypasses the contractual opportunity to remedy, recoverable cost may be restricted. The contractor should inspect and offer a proportionate remedy while reserving any entitlement caused by fragmented or late notification.
| Issue | Position |
|---|---|
| Defect omitted from first list | Liability not automatically waived |
| Late second schedule | Check contractual correction machinery |
| Underlying breach claim | May continue despite expiry of defects period |
| Denied opportunity to remedy | May affect recoverable cost |
| Limitation | Runs from the legally relevant cause of action |
Separate procedure from liability
The contractual correction period regulates how defects are notified and remedied. The underlying obligation to comply with the contract is separate. Clear release or exclusivity wording is required before the procedure is treated as extinguishing an accrued damages claim.
Questions for the second schedule
| Question | Required analysis |
|---|---|
| Is the item defective? | Compare the work with the contractual standard. |
| When was it discovered? | Record whether it was patent or latent and when knowledge arose. |
| Was it omitted earlier? | Identify what the first inspection could reasonably reveal. |
| Is return required? | Apply the exact notice and correction provisions. |
| What loss follows? | Prove reasonable remedial cost and consequential loss. |
| Is the claim in time? | Identify cause of action and applicable statutory period. |
HW Nevill
Defective construction is a breach capable of supporting damages. The defects procedure does not by itself replace that underlying contractual liability.
Pearce and High
Damages remained recoverable for known defects omitted from the defects list. The omission did not waive the employer's underlying rights.
A late list is not an automatic release
Failure to issue a schedule within the stated administrative period does not necessarily release the contractor from breach. It may prevent or alter use of the correction procedure, depending on the words used, without eliminating a separate claim for damages.
Contractor's opportunity to remedy
The correction clause commonly benefits both parties by allowing the original contractor to return at lower cost. An employer that proceeds directly to a replacement contractor without allowing the agreed opportunity may face an argument that the additional cost was avoidable.
The contractor can offer inspection and correction without admitting liability, while recording any extra mobilisation cost caused by a fragmented schedule.
Limitation Act 1980
For an action founded on simple contract, section 5 provides a six-year period from accrual of the cause of action. Section 8 addresses actions on a specialty and provides a twelve-year period, subject to its terms. Practical completion is not a universal statutory starting date. Identify when the pleaded breach and cause of action accrued, and consider any other applicable statutory regime.
Do not confuse the defects period with limitation
A twelve-month or two-year correction period is not normally a contractual limitation period. Expiry may end the particular return-and-remedy machinery while leaving accrued contractual remedies available within the applicable legal time limit.
Employer administration
Inspect methodically before the correction period expires, issue one supported schedule where possible and notify later-discovered items promptly. Give access and a reasonable correction opportunity unless the contract, urgency, safety or prior refusal justifies another course.
Contractor response
For each later item, state whether liability is accepted, request access, propose the method and programme, and reserve the effect of late or duplicate mobilisation. Do not refuse every later item merely because it was absent from the first schedule.
Decision sequence
Verify the contractual standard and alleged defect.
Read the schedule timing and correction provisions.
Identify why the item was omitted and when it was discovered.
Determine whether the contractual return right remains available.
Offer or permit inspection and proportionate correction.
Assess mitigation and any extra cost caused by late notice.
Identify accrual and the applicable limitation period.
Record agreement, refusal and completed remedial work.
Authorities
| Authority | Year or status | What it decides |
|---|---|---|
| HW Nevill (Sunblest) Ltd v William Press & Son Ltd | (1981) 20 BLR 78 | Defective construction may constitute breach supporting damages. |
| Pearce and High Ltd v Baxter | 1999 | Omission of known defects from the schedule did not extinguish the recorded damages claim. |
| Limitation Act 1980, section 5 | Current statute | Six years for an action founded on simple contract from accrual of the cause of action. |
| Limitation Act 1980, section 8 | Current statute | Twelve years for an action on a specialty, subject to the statutory wording. |