Cases - William Tompkinson v The Parochial Church Council of St Michael

Record details

Name

William Tompkinson v The Parochial Church Council of St Michael

Date

[1990]

Citation

6 Const LJ 319

Keywords

Defects - practical completion

Summary

The defendant employed the claimant to carry out restoration works at a church. The contract was the JCT Standard Form Agreement for Minor Works (1980) edition. The claimant claimed for sums certified and the defendant counterclaimed in respect of defective work and damage allegedly caused to the existing building by the claimant or by the weather, by reason of the claimant's failure to provide temporary protection to the building.

The defendant engaged other contractors to rectify the defects and the damage before practical completion and counterclaimed for the consequent cost. The claimant contended that clause 2.5 of the JCT conditions required notice to be given to them in writing, and that in the absence of such notice, and in the event of rectification of defects by the defendant before the date of practical completion, there was no basis for the counterclaim.

The reported proceedings concerned the trial of preliminary issues, including:

• Whether the contractors (the claimant) had given notice of certain defects as required by clause 2.5 of the JCT conditions.
  It was held that the contractor was given sufficient notice for the purposes of the clause. It was accepted that it was the architect's duty to pass on the employer's complaints about defects to the contractor and to investigate them for himself.
  The court held that clause 2.5 of the JCT Minor Works Agreement did not require notice to be given in writing, that clause 2.5 did extend to defects which appeared prior to practical completion, but did not, on its true construction, extend to damage to the existing building and to damage whether caused directly by the claimant or by the claimant's failure to protect the existing building from the weather.
• Does clause 2.5 of the JCT conditions afford the contractor a defence to the church's claim for the cost of remedying certain defects having regard to the circumstances that those defects were remedied by other contractors on the instructions of the church prior to the date of practical completion?
  It was held that the church was entitled to recover damages for defects that appeared before practical completion, but that the measure of damages was the cost which the contractor would have incurred in remedying the defects.

The court also addressed the requirement to confirm notification of defects in writing contained in clause 3.5 of the JCT contract. The question of whether a communication to the contractor constitutes sufficient notice depends on the wording of the relevant contractual clause. Clauses 2.5 and 3.5 of the JCT minor works 2005 do not specify any particular form for such a notice or say by whom it is to be given (in the 2011 edition, it is clause 2.10). Contrast this with clause 17 of the JCT form of main contract (1980 edition), which requires that notification of a defect be given by the architect and that it shall be delivered to the contractor in the form of a schedule of defects no later than 14 days after the expiry of the defects liability period.

Clause 2.5 also operated as a licence conferred on the claimant to return to the site after practical completion for the purpose of remedying defects. Where the defendant had engaged other contractors to carry out work which was the subject matter of this licence, the defendant was entitled to recover not its outlay in remedying the damage, but the cost which the claimant would have incurred in remedying it if they had been required and permitted to do so.