Gillian Birkby’s salutary tale (“A hard way to earn £2”, 11 March, pag1e 60) could be seen to blame JCT80 for the mess that arose from allowing a client to take over part of an uncompleted building. If so, she is wrong.
The stages of completion and making good of defects as laid down by JCT80 are practicable, fair and explicit. The problem could have been avoided if the parties had complied with the terms they agreed at the outset.
JCT80 does not recognise “snagging” simply because it is not necessary for the proper functioning of the contract process. Only the architect’s opinion that practical completion has been achieved can determine that the point of completion has arrived. Snagging at best is a useful aid to inspection: at worst it can be a distraction to the force of the contract.
Legal commentators have from time to time challenged JCT to explain what it means by “practical” completion. Again, I believe that the term does not need amplification. Completion means just that – a building that satisfies the architect. The word “practical” was inserted only to protect the client against defects.
Partial possession as seen in Gillian Birkby’s account of this case is a red herring. The rules for completion apply equally to partial possession. If in this case, as is implied, partial possession had been used as a device to allow a third party to take possession and at the same time permit snagging and making good defects to proceed, the architect and contractor might have known they were heading for trouble by effectively preventing the contractor from making good its defective work.
Although pressing for premature completion is not within any client’s gift, it could be said that there is some justice in the outcome of this case, which became a pyrrhic victory for this client.
Malcolm Taylor, via email