Grounds For Construction Disputes And Claims
Specialist In Our Field
At Fisher Scoggins Waters, our partner-led team have been successfully advising construction and engineering firms for many years. Drawing from our years of experience and involvement in many high profile cases we cut to the heart of complicated legal issues and guide our clients through the entire Dispute Resolution Process.
Common Grounds For Construction Disputes And Claims
Defects in the Work
One of the most obvious claims that could arise in a construction project is a claim for defective works. Patent defects may arise in the works as they progress, which the contractor will need to remedy before practical completion, to avoid being in breach of contract. Minor defects may also be detected that will not prevent certification of practical completion, but which will form a snagging list of issues.
Latent defects may only become apparent some years after completion of the works—for example, defective construction of foundations leading to subsidence, or inadequately installed waterproofing resulting in water ingress can take some time to appear. By the time such defects are discovered, the employer will often no longer have the contractual ability to require the contractor to return to correct them, which can lead to claims being brought against the contractor by the employer, or by parties that have subsequently acquired the right to do so.
Not all defects will arise from the contractor's poor workmanship. A defect could also arise because of a design flaw. If this is due to a consultant's failure to exercise the skill and care required by its appointment, or otherwise to carry out the design in accordance with its appointment, the consultant may be liable.
Claims about design may also be made against the contractor in the event that the contractor has taken responsibility for the design.
Completion Delays and Extensions of Time
The building contract will usually require the works to be completed by a specific date. If the works are not completed on time, this could cause the employer additional cost.
The contractor has no statutory or common law right to an extension of time to complete the works. Therefore standard construction contracts provide express contractual provision for the contractor to be granted an extension to the contractual completion date.
Extensions of time can be a contentious issue. The contractor may claim that an event has occurred entitling it to an extension of time, and while the employer may agree that the event has occurred, it may disagree that it had any effect on the contractor's ability to complete the works or disagree as to the extent of any delay. For example, the employer may agree that a 'relevant event' has occurred, such as exceptionally adverse weather, but it may contend that this event has had no effect on the contractor's ability to complete the works on time. Claims for extensions of time can often lead to disputes.
Loss and expense
Loss and expense claims are a particularly contentious issue in construction contracts. Claims for loss and expense are brought by contractors in relation to the additional cost incurred because of a disturbance in the regular progress of the works (for a reason which is not at the contractor's risk). For example, where the contractor is entitled to an extension of time to complete the works the contract may also entitle the contractor to claim for the costs of being on site for a longer period.
Claims against the employer
Claims are commonly made against the employer, for example for extensions of time to the date for completion of the works, for payment of additional money for variations to the works and/or for related loss and expense. If the employer fails to pay the contractor on time, a claim could also be made, or, subject to the terms of the contract, other steps taken by the contractor (e.g., suspension of its work) which could affect the progress of the works.
Non-payment by the employer
If the employer, without justification, fails to pay the contractor in accordance with the contract then it will be in breach of contract, and the contractor will be entitled to make a claim, in accordance with normal common law requirements.
In addition, if the contract is subject to the Housing Grants, Construction and Regeneration Act 1996 and if the full amount of any payment due to the contractor/consultant is not paid by the employer by the 'final date for payment', either in accordance with the contract or the Scheme for Construction Contracts (as relevant) then, unless the appropriate 'pay less' notice has been issued by the employer, the contractor/consultant may claim against the employer.
For more information on how Fisher Scoggins Waters can help with Construction Dispute Resolution, please contact us by telephone on 0207 993 6960 or email Charlotte Waters by using the enquiry form below: