Construction Law/Legal Status

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Question
A contractor has been appointed to construct a mixed-use development on behalf of Client (the Employer). The contractor now alleges that they have experienced a number of problems since undertaking the development.

Firstly, the site was to be handed over to them by 1st June but they did not receive possession until 21st June.

Secondly, a nominated subcontractor who have responsibility for the preliminary underpinning works have consistently interfered with the main contractors use of the site.

Thirdly, the Employers Rep has been over fussy in certifying the works and has on occasion delayed the release of an interim payment. The contract refers to the quality of work being ‘fit for purpose’ In addition the Employers rep has instructed the removal of a wall which the contractor is of the opinion that is load bearing however the Employers Rep disputes this?

Finally, the contractor is worried about the material supplied and works carried out by one of his sub-contractors, they did not supervise these works and therefore feel that they are not responsible in any way to the Employer.

Contractor is now worried that delays will result in the late delivery of the project and thus exposure to Liquidated Damages of 10,000 per week. Any advise as to the relevant law or case law, which is applicable or advise on legal entitlement or reasonable course of action to take.

Answer
Dear Peter,

You do not mention the form of contract, nor the applicable law, so the following comments will be generic.  

As with all matters relating to delays, I suggest that both parties download and study the latest version of the SCL Delay and Disruption Protocol www.eotprotocol.com so that both parties start from the same understanding of delays.  

Depending on the form of contract, nominated subcontractors can have special protection, or can be considered as domestic subcontractors.  If considered as as domestic subcontractors, the Contractor is entirely responsible for their supervision, progress, materials and workmanship.  As with all domestic subcontractors, the Contractor cannot deny responsibility if he does not supervise their work.  

The remedies for delays in certification of the IPC depend on the form of contract.

The effect of removing a wall depends on the form of contract and who is responsible for design matters.  

Without knowledge of the applicable law and the form of contract, I cannot advise on case law.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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