What if an architect forgets to issue a list of defects at the end of the rectification period under SBC?
This happens more often than might be imagined. If the contractor does not receive the list within 14 days from the end of the rectification period the most obvious thing to do is to issue the list just as soon as the architect remembers. Although the architect is in breach of duty under the contract, there is a good chance that the contractor will simply get on with the remedial work. The contractor may refuse to do the work, arguing that it is under no obligation to attend to any defects which are notified more than 14 days after the end of the defects liability period. The contractor may be under the common, but mistaken, impression that the end of the rectification period marks the end of its liability for defects. Not so. The contractor’s obligation is to carry out and complete the Works in accordance with the contract. If it fails to do this, it is in breach of contract as may be evidenced by defects appearing during the rectification period. The contract provides for the contractor to return to site and rectify the defects. If it does not wish to take advantage of this opportunity, the unrectified defect amounts to an unremedied breach of contract. The contractor is not obliged to rectify it, but it is liable for damages for the breach. The employer may engage others to correct the defects and recover the cost of rectifying them. As a result of the architect’s failure to issue the list within the contractual timescale, the employer cannot recover the whole of the cost of rectification. Strictly, the employer may only recover what it would have cost the contractor to correct the defects. In practice, the employer would simply issue a withholding notice and deduct the cost from monies due to avoid paying the money and having to sue for its return. It should be noted that when Part 8 of the Local Democracy, Economic Development and Construction Act 2009 commences, it will amend the Housing Grants, Construction and Regeneration Act 1996 requirements for notices before payment.
MW clause 2.10 and MWD clause 2.11 make provision for a rectification period. There is no specific requirement for a schedule of defects, simply for notice to be given by the architect who it seems can require defects to be made good at any time during the period. It is good practice to issue a list and, provided that the architect is not very late in doing so, the contractor probably will have little ground for complaint.