Defects Discovered After Completion? A Practical Guide For Schools

Discovering defects after construction works have been completed can be alarming, particularly where the defects affect safety, compliance, or the day-to-day operation of a school. However, the worst thing an employer can do is assume that somebody else will deal with the problem or wait too long before taking advice.

In many cases, schools and academy trusts have viable routes to recover the cost of investigations and remedial works. The key is to act early, preserve evidence and understand what rights may be available.

Step 1: Check Limitation Immediately

The first question should always be whether a claim remains in time.

Construction claims are often subject to strict limitation periods. In broad terms:

• Claims under a simple contract are usually subject to a six-year limitation period.
• Claims under a deed are subject to a twelve-year limitation period.
• Similar considerations may apply to collateral warranties depending on their terms and execution.

It is therefore essential to identify:

• What contracts were entered into
• Whether those contracts were executed as deeds
• Whether collateral warranties were provided
• When practical completion occurred and when any relevant causes of action accrued

Schools frequently underestimate how quickly limitation deadlines can arise. If a limitation date may be approaching, legal advice should be sought immediately.

Even a strong claim can be lost entirely if proceedings are not commenced in time. A contractor may also stall for time by engaging in discussion but only issuing formal legal proceedings will protect a claim against limitation.

Schools should contact the RPA promptly. Whilst the RPA has no responsibility for overseeing building works or issues arising from them, early intervention is likely to prevent losses escalating and worse catastrophic failure. Whilst the RPA membership rules preclude cover for damage caused by latent defects or poor repair, the Secretary of State ultimately has responsibility for funding the provision and funding works to safeguard buildings. A failure to pursue remedies and deal with defects will inevitably feed into a higher reactive and planned maintenance programme and put strain on any school rebuilding programme.

Step 2: Review Insurance and Warranty Cover

Before considering litigation, investigate whether the loss may already be covered by insurance or another form of protection.

This might include:

• A latent defects warranty or structural warranty
• A latent defects insurance policy
• Building insurance
• Professional indemnity-backed warranties
• Other project-specific insurance arrangements

Importantly, insurance notifications may themselves be subject to notification requirements and limitation periods. If there is any doubt about whether a policy or warranty may respond, it is often safer to notify the insurer (or RPA) or warranty provider and preserve your position.

Failing to notify promptly can prejudice cover.

Step 3: Gather the Contract Documents

The contract documentation often contains the roadmap for any recovery action.

Key documents commonly include:

• The building contract
• Employer’s Requirements
• Contractor’s Proposals
• Specifications and drawings
• Consultant appointments
• Collateral warranties
• Records of variations and instructions

These documents may identify who accepted responsibility for the relevant design or workmanship and what standards were required to be achieved.

Defects rarely arise in isolation. Understanding precisely what was contracted for is often the starting point to understanding what has gone wrong.

Step 4: Investigate the Cause of the Defects

A successful claim requires more than identifying that something has failed.

The real question is why.

For example:

• Is the problem caused by defective workmanship?
• Is there a design error?
• Was the specification inadequate?
• Were unsuitable products used?
• Was the work carried out other than in accordance with drawings or regulations?

Expert input is often critical at this stage. Depending on the nature of the defect, it may be appropriate to engage:

• Building surveyors
• Architects
• Structural engineers
• Fire engineers
• Building services engineers
• Other specialist consultants

The objective is to establish both the nature of the defects and the underlying cause.

Step 5: Identify Who Is Responsible

One of the most common misconceptions in construction disputes is assuming that only the contractor can be liable.

In practice, responsibility may extend to several parties, including:

• Contractors
• Design and build contractors
• Architects
• Engineers
• Building surveyors
• Specialist subcontractors
• Design consultants

Different parties may be responsible for different aspects of the project, depending on the overarching contractual arrangements.

For example, a contractor may have defective workmanship liability, whilst an architect or engineer may be responsible for a defective design.

At this stage it is important to map the defects against the contractual and professional responsibilities of each participant.

Step 6: Assess Whether a Claim Is Commercially Viable

Even where liability appears clear, it is worth considering whether recovery is realistically achievable.

Questions commonly include:

• Is the proposed defendant still trading?
• Are they solvent?
• Do they have professional indemnity insurance?
• Is there sufficient cover available?
• Are there contractual liability caps or exclusions?

There is little value in spending potentially substantial sums pursuing a claim against a party that has no assets, no insurance and no realistic ability to satisfy a judgment.

An early assessment of recoverability can save significant time and cost.

Step 7: Quantify the Loss

The next stage is to establish the financial consequences of the defects.

This often includes:

• Investigatory costs
• Temporary works
• Emergency remedial measures
• Permanent remedial works
• Professional fees
• Associated losses arising from disruption

The most significant head of loss is often the reasonable cost of carrying out the necessary repairs.

Care should be taken to retain invoices, quotations, expert reports and other evidence supporting the loss claimed.

Step 8: Prepare a Proper Letter of Claim

Before commencing proceedings it is generally advisable to set out the claim in a detailed Letter of Claim.

A well-drafted Letter of Claim should explain:

• The relevant contractual and/or professional duties owed
• What obligations applied
• What the contractor, consultant or other party did wrong
• What should have been done instead
• Why the failures caused the defects
• The losses that have been incurred

This process often requires a detailed review of contractual documents, technical evidence and the applicable legal duties. A robust and properly evidenced Letter of Claim frequently creates the best opportunity for an early commercial resolution.

Conclusion – Get Advice Early

The reality is that construction defect claims are rarely just technical problems. They involve contractual rights, limitation issues, insurance considerations, expert evidence and strategic decisions about who to pursue.

Schools that act promptly, preserve evidence and obtain specialist advice at an early stage will generally place themselves in the strongest position to recover their losses.

If defects have been identified, particularly where limitation periods may be approaching, specialist legal advice should be sought without delay. Waiting can significantly reduce the available options and, in some cases, may result in valuable rights being lost altogether.