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Expert Witness: Report upon building defects, and advice upon Contract dispute.
Client: Pearmain Limited.
The Shoe Factory in Leicester is a prizewinning conversion of a nineteenth Century commercial building to provide forty high quality Flats and Penthouse units. The project was developed by Pearmain Limited, with architects Metropolis Architecture Limited in 2007. When Certifying Practical Completion the architects identified an extensive list of incomplete or defective Works, which required rectification, amounting to as many as three pages of alleged defects per property. Some were minor, such as scratches in paintwork or defective operating mechanisms to doors and windows. However, as this was a prestigious development such matters were of concern to Pearmain, and to prospective purchasers. Other matters were more serious: including leaks into and through the metal clad roofs of the common areas, and defects in the fire doors sufficient to invalidate their integrity.
Following the issue of the Certificate, Pearmain declined to release the retention until the "defects" set out on the architect's "Snagging List" were rectified. In accordance with the terms of the Contract the Contractor launched an Adjudication. We were engaged by Pearmain to review the "Snagging List" and offer comment upon the degree of severity of the "defects". And, to assess the severity of each matter identified by the architect. Working with Solicitors Fishburns we undertook a comprehensive review of the state of the Works and were able to advise upon the cost of the necessary Remedial Works. We also acted as Expert Witness in providing evidence to the Adjudicator.
The Contractor, Hallam (Contracts) Limited were successful in both the first and in a subsequent Adjudication, the Adjudicator finding that the issue by the Architect of a Certificate of Practical Completion signified the Works were complete to the satisfaction of the Contract Administrator. In consequence of which, the Retention was due to the Contractor. The Adjudicator noted that, irrespective of the severity or extent of "defective" Works, the Employer had no alternative but to release the Retention.
Unfortunately for the Contractor, Pearmain were placed into receivership by the funders before the Contractor was able to secure payment of the Adjudicator's Award, which was, needless to say, a substantial sum.
The moral of the story? For architects: never, ever, ever issue a Certificate of Practical Completion until the Works are complete, down to the last screw, nut, bolt and lick of paint. Certainly, never issue a Certificate to which is attached a "Snagging List". And, architects do not do"snagging": there is no reference to "snagging" in the standard RIBA Forms of Appointment, for good reason. The existence of a "Snagging List" means the Works are incomplete: therefore, no Certificate of Practical Completion should be issued.
The moral for building owners? Be alert to the risks of pressing an Architect to issue a Certificate of Practical Completion. Contractors are under no obligation to return and complete the matters listed on a "Snagging List", however well intentioned they may appear. And for Contractors: monitor the Works constantly to ensure they comply with the Contract Documents, thus avoiding the need for the Works to be "snagged" at the last moment. A long list of incomplete works immediately prior to Practical Completion suggests a lack of sufficient quality control during the Works.
Below: photographs of the rain-screen cladding, and leaks to the common areas.
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