Defects liability period meaning

What was the background? The reclaiming motion—Scotland’s term for an appeal—came before the Inner House of the Court of Session and related to Greater Glasgow Health Board’s (GGHB) damages claim against Multiplex Construction Europe Ltd (Multiplex) and others, said to arise from alleged defects in constructing the Queen Elizabeth University Hospital in Glasgow. The initial focus was the aluminium composite material cladding in the atrium, which GGHB contended had been installed contrary to contractual requirements. Multiplex denied liability and, in any event, maintained that any obligation to make reparation to GGHB had been extinguished by prescription under PL(S)A 1973, s 6(1). After a preliminary proof on prescription, the commercial judge concluded that the five-year prescriptive period began at practical completion in January 2015 and that GGHB’s action, raised in March 2022, had prescribed. He rejected GGHB’s reliance on PL(S)A 1973, s 6(4)(a)(ii) (error induced by the debtor) and PL(S)A 1973, s 11(3) (postponement due to lack of awareness of loss), and assoilzied the defenders and third parties...

BDW Trading Ltd v Ardmore Construction Ltd [2024] [EWHC 3235 (TCC) What are the practical implications of this case? This judgment offers useful guidance on the way claims concerning historic defects under the DPA 1972—revived by amendments to the Limitation Act 1980 made through the Building Safety Act 2022, which extended the applicable period to 30 years—are expected to be addressed in adjudication and before the courts. In this instance, the judge showed little patience with the defendant contractor’s position about the passage of time, despite some 20 years elapsing between completion of the works and the bringing of the claim. The court also rejected submissions questioning the adjudicator’s remit to decide DPA 1972 claims on the footing that they were not disputes arising ‘under the contract’. It confirmed that the Fiona Trust principle applies to adjudication provisions: parties are presumed to have intended that a single tribunal should resolve all disputes that arise out of their relationship. Accordingly, arguments aimed at carving out statutory claims from...

This Practice Note gives guidance on the scope and interpretation of section 38 of the Building Act 1984 (BA 1984) The government signalled that BA 1984, s 38 would commence ‘alongside’ the legislative changes that took effect under the Building Safety Act 2022 on 28 June 2022, but no regulations have yet been published to commence it. Section 38 states that, where a duty set by the building regulations is breached and damage results, the breach is actionable. In effect, parties who do not comply with the building regulations may face civil liability. This Practice Note clarifies what the building regulations cover, who may bring or face claims under BA 1984, s 38, and the damages that might be recovered in a claim relying on s 38. The focus is on those regulatory provisions that prescribe standards for building work, where non-compliance can manifest as defects. It also recognises that the building regulations impose other requirements relating more broadly to the building control process. These include obligations and...

This Practice Note outlines the law on product liability and defective goods under the Consumer Protection Act 1987 (CPA 1987). The Act places liability on producers of defective products. It examines what amounts to a defect for the purposes of the CPA 1987, which parties in the supply chain may face liability, the extent of that liability and any contributory negligence considerations, the categories of damages recoverable, and the defences available to a producer. It also reviews leading case law affecting the meaning of defect and the burden of liability under the CPA 1987, namely Wilkes v DePuy and Gee v DePuy, and notes plans for future reform in this field. Statutory framework CPA 1987 gave effect in UK law to Council Directive 85/374/EEC on liability for defective products (the EU Product Liability Directive or EU PLD). Part I of the CPA 1987 imposes strict liability on producers for damage caused by defects. After the end of the implementation period for the UK’s transition away from the EU,...

Agreement for lease—construction obligations, defects liability and collateral warranties Under an agreement for lease that includes construction duties, the landlord is bound to deliver a specified building (or part) to an agreed standard by a set date. However, it will typically accept responsibility for defects in the works only for a limited period following completion—usually up to the end of the defects liability period (see, for instance, the Defects Liability clauses in Precedent: Agreement for lease—developer landlord to carry out major works incorporating the Standard Commercial Property Conditions (Third Edition)). As a result, the tenant will wish to keep track of the construction phase and obtain extra contractual protection, such as collateral warranties or third party rights, to safeguard its position if defects emerge after the landlord’s liability to the tenant has expired. For further detail on collateral warranties and third party rights in this context, see Practice Note: Agreements for lease for construction lawyers—collateral warranties and third party rights...

The Contract comprises the completed Standard Building Contract Without Quantities for use in Scotland 2016 published by the SBCC subject to the following amendments: Recitals and Articles updated: contractor to provide a master programme and Schedule of Information Requirements; CDP responsibility accepted; Principal Contractor duties priced; arbitration deleted; Schedule of Amendments prevails; Third Party Agreements duties. Contract Particulars: arbitration entries removed; Rectification Period set at 12 months; fluctuations and certain PII/guarantee entries deleted. Conditions: key definitions revised (Practical Completion, Copyright Material, Design sub‑contractors, Funder, Site); Scottish jurisdiction; approvals mean principles only; entire agreement; variations in writing. Design/materials/programming: contractor accepts ER/CP; quality and non‑deleterious materials; programme reporting; site risk; drawings/info supply; tighter discrepancy notices. Time/defects: mitigate and advise on delay; narrower Relevant Events; Practical Completion clarified; stronger rectification, consequential damage and indemnity; phased as‑built/occupation information. IP/confidentiality/BIM: broader licence, moral rights waivers and delivery; confidentiality reinforced; BIM where adopted. Management/sub‑contracting: access, approved Site Manager, meetings; prescribed sub‑contracts; collateral warranties/third‑party rights; CDM duties; insurance...

Retention Retention describes the portion of interim payments the employer withholds as security for the contractor’s future performance of its duties and to encourage the contractor to discharge those duties in full and properly. For further details, consult the Practice Note: Retention of payment in construction contracts. When retention is to be released to the contractor depends on the particular contract terms for the project. Typically, half of the retained sum is paid out at practical completion, with the balance thereafter following completion of any remedial works for defects reported within the defects liability period. Consequently, if these milestones are reached before the final certificate is issued, the contractor may have a right to seek payment of some or all of the retention...