From time-to-time contractors may allege that there are defects present in the sub-contract works. The legal principle often brought to the fore in these circumstances is the contractor’s duty to mitigate their loss.
Where the work is carried out for another business, for example when undertaking work as a sub-contractor, unless the contract expressly provides for it there is no automatic right to return to remedy defects. This would then allow the contractor to employ others to carry out remedial works but the courts may still deem this a breach of their duty to mitigate if it would have been reasonable for the sub-contractor to be offered the chance to remedy the defects.
it is common to see a defects liability period included which stipulates that the sub-contractor, during a specified period of time, is required to return and remedy defects. If, having been notified of defects, the sub-contractor refuses to return then it could find itself liable to pay for the cost of another business to remedy those defects.
Generally, a contractor would be prudent to offer to remedy defects because it could avoid a claim being brought against them. If the sub-contractor unreasonably refuses you the chance to remedy any defects, they could be acting in breach of contract themselves or be in breach of their duty to mitigate their loss.
While the principles remain similar, the position regarding returning to remedy defects is different where work is carried out for a consumer as terms are implied into the contract by the Consumer Rights Act 2015.
For further advice, contact PGM Solicitors on 01792 468684 or email enquiries@pgmsolicitors.co.uk
Article by Tom Blake published for the NFRC (National Federation of Roofing Contractors).
