Is there a time limit within which a contractor must remedy all defects notified at the end of the rectification period?
SBC clause 2.38 states that the contractor must make good the defects within a reasonable time. Some other contracts do not include any reference to the matter at all. Where the contract is silent, it is likely that the law will imply a term to the effect that the contractor must rectify the defects within a reasonable time. The question then is the more difficult one of ‘what is a reasonable time?’ It is easy, and accurate, to say that what is a reasonable time depends on all the circumstances, but it is not very helpful. Ultimately, it is what the adjudicator, the arbitrator or the judge thinks is reasonable in any given situation which is important. The things which will be taken into account are the number of defects and the difficulty of rectification. If rectification requires serious opening up of the fabric, it may well take some time. The urgency of a particular defect will be a factor as will other work in which the contractor is engaged. The fact that a contractor is busy with other work is unlikely to weigh heavily with an adjudicator in view of the fact that each defect is, of course, a breach of contract. Highly specialised work may take longer to organise and rectify, because of the difficulty in securing the appropriate sub-contractor.
It is relatively common for an employer to demand that the contractor fits in with the employer’s arrangements when rectifying work. The employer may say that he will only allow access on certain days and perhaps certain hours on those days. Most standard form building contracts say nothing about such things and, while it will be understood that a contractor returning to site will not be allowed a completely free run of the building at such times as it sees fit, it will be implied that the contractor is entitled to access to carry out the remedial work at reasonable times. It may suit both parties for the contractor to do the rectification in small parcels with minimum disruption or, alternatively, to dispose of the whole of the defects in one continuous period of high activity. Either approach could be reasonable, depending on the circumstances of both parties. The one certain thing is that it is to the advantage of both parties to sort out a straightforward timetable without recourse to legal action which may result in an order which suits neither party.