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Clarifying matters on JCT contracts book

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I was pleased to read David Chappell's polite and generally complimentary review of my book, Guide to MW98 (aj 24.2.00), and to note that we are in agreement over a number of issues, including the vexed question of 'snagging'. But there are a few points which Chappell has raised as 'quibbles' about 'opinions expressed' which I think it would be only fair to respond to.

In the fourth paragraph, Chappell implies that my book states three things: that under MW98 the architect is under a duty to 'express dissatisfaction with work within a reasonable time'; that the architect is also under a duty to the contractor to point out defects; and that the second notice under clause 4.4.2 is an optional requirement. Contrary to his implication, I do not hold these views and do not express them in the book.

Regarding the first two points, at several places in the book I state that the architect is under no general duty to point out defects to the contractor (see for example paragraphs 3.1, 4.38, 5.2, and 5.20). There are, however, two instances where I suggest some duty may arise.

The first is following practical completion, where the case of Pearce and High vs Baxter and Baxter now suggests that if neither the employer nor the architect notify the contractor of defects during the defects liability period, the employer may not be able to claim the full cost of having them repaired by others.It would be prudent to ensure that the contractor is notified.

The second instance is in relation to the situation where the contract documents have left a matter of quality to the discretion of the architect (see paragraph 3.13), in which case I advise the architect to 'express dissatisfaction with work within a reasonable time'. An example might be where the specification expressly states that the standard of particular work is to be 'to the satisfaction of the architect'. In this situation the contractor has no certain means of establishing whether it has reached the standard required other than receiving the approval of the architect. I therefore think it would be reasonable for the architect to state any disapproval as soon as is practicable and, contrary to Chappell's suggestion, that such a term might be implied by the courts. The alternative (ie that the architect is free to withhold his or her dissatisfaction indefinitely, for example waiting until near completion, when the remedial work could cost far more than it might otherwise have done), is so unworkable that no reasonable people would be likely to have agreed to it. The term may therefore survive the strict 'test of necessity' set by the courts for terms implied 'in fact'. It would be better for the architect to err on the side of caution.

Sarah Lupton

NB: Guide to MW98 is available from RIBA Publications

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