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Usually, no—not as an automatic common-law entitlement. Chris Hadnutt’s 2 August 2022 article, Essential law: Defects, part three, states that a contractor has no common-law right to rectify its own defective work. Once practical completion has been certified, the contractor can return to site only with the employer’s permission. The employer may instead seek damages, appoint the original contractor on agreed terms, or arrange rectification through a third party. The contract and the project facts still control the result in any live dispute.
The precise question: who controls remedial work after practical completion?
Construction defects are often discovered after the project has reached practical completion. At that point the employer may want the work corrected quickly, while the contractor may ask to come back and put its own work right. The important issue is not simply whether the work is defective. It is whether the contractor is entitled to re-enter the site and carry out the remedy without the employer agreeing.
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Hadnutt’s article addresses that post-completion choice. It describes defective work as a breach of contract and identifies three broad responses available to the employer: claim damages, allow the original contractor to rectify, or have a third party rectify the work. The article’s general position is not a ruling on any particular project. A contract’s express wording, notices, access arrangements and dispute provisions must be checked before applying it.
Is there a common-law right for the contractor to return?
The source gives a clear answer: “There is no common law right for a contractor to rectify its own defective work.” That means the contractor cannot rely on a general legal permission to come back after completion merely because the defect is in its own workmanship.
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The practical-completion certificate is the point the article identifies as decisive for site access. After practical completion has been certified, the contractor may return only if the employer permits it. Permission is therefore a decision for the employer, not an automatic consequence of the contractor offering to repair.
This statement should not be expanded into a claim that every construction contract produces the same outcome. A contract might contain express defects, access, testing, notice or rectification provisions. Those terms may define what the parties must do, when a request must be made and how a disagreement is handled. The general common-law position and the contract’s express machinery have to be read together.
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Practical completion is a contractual milestone evidenced here by certification. The article uses certification as the dividing line between the ordinary performance phase and a later defects decision. Before that point, the contractor’s ongoing performance obligations may still govern access and completion activities. After certification, a return to site is no longer something the contractor can assume.
Certification does not, on the information available, erase the employer’s rights concerning defective work. The source characterises the defect as a breach of contract and says the employer may elect a remedy. It also does not establish that every defect must be accepted, or that certification itself decides whether a particular item is defective. Those questions depend on the contract, the certification record and the evidence about the work.
For that reason, a practical-completion certificate should be preserved with the contract, drawings, inspection records and correspondence. It identifies the date from which the permission issue described by Hadnutt arises, while the rest of the project file helps establish what was promised and what was delivered.
The employer’s three broad remedy choices
The source identifies three possible routes. They are not interchangeable: each gives the employer a different level of control over who performs the work and what must be proved.
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| Route | Who performs the work or pays | Permission and control point | Cost or timing information established by the source |
|---|---|---|---|
| Damages | The employer seeks monetary compensation for the contractual breach rather than accepting remedial work by the contractor. | The employer does not have to grant the original contractor a return-to-site opportunity merely because damages are sought. The contract and applicable law determine the claim’s scope. | Not stated in Hadnutt’s 2 August 2022 article. |
| Rectification by the original contractor | The contractor carries out the corrective work. | After practical completion, the employer’s permission is required. Permission can be defined by written conditions covering access, method, programme and sign-off. | Not stated in Hadnutt’s 2 August 2022 article. |
| Rectification by a third party | A replacement contractor or specialist undertakes the work, with the employer arranging the appointment. | The original contractor is not the person performing the remedy. The employer should still check contract procedures, evidence and any obligations affecting appointment of others. | Not stated in Hadnutt’s 2 August 2022 article. |
The table shows why the permission question matters. Allowing the original contractor to return is one available remedy, not a right that displaces the employer’s other choices.
How an employer should approach the decision
The source does not rank the three remedies or provide a cost or success comparison. An employer therefore needs a project-specific decision process rather than a blanket rule.
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1. Confirm what is alleged to be defective
Describe each item precisely: its location, the work or specification said to apply, when it was observed and the consequence for use or performance. Photographs, marked-up drawings, test results, inspection notes and correspondence can show the condition at the relevant time. Keep original files and dates so that later changes are distinguishable from the initial defect.
2. Check the contractual framework
Read the clauses dealing with defects, completion, access, notices, instructions, testing, payment, insurance, suspension and dispute resolution. Identify who issued the practical-completion certificate and the certified date. Look for any express mechanism giving the contractor a period or procedure for proposed remedial work. The general statement in Hadnutt’s article does not supply those project-specific terms.
3. Obtain technical and legal advice where the issue is contested
A building surveyor or engineer can help determine whether the condition is a defect and what work would remedy it. A construction solicitor can assess notice requirements, contractual rights and the consequences of choosing one remedy over another. Do not assume that a contractor’s admission, an informal site conversation or a quotation settles the legal position.
4. Decide whether access should be permitted
If the employer is considering the original contractor’s proposal, permission should be deliberate and recorded. If the employer does not want a return, the refusal and the reason should likewise be documented. The decision can take account of urgency, the contractor’s competence and cooperation, the risk of disturbing evidence, access constraints and the need to keep the premises operating. These are practical considerations, not substitutes for the contract.
5. Put any permission in writing
A written permission should identify the exact defects, the authorised dates and areas, the people allowed on site, health-and-safety requirements, protection of occupied areas, the proposed method, testing, cleaning, reinstatement and the person who will confirm completion. It should state whether the permission is limited to the listed work and how changes must be approved. The document should avoid accidentally suggesting that unrelated rights or claims have been waived; obtain legal advice on suitable wording.
6. Record completion or the reason for changing course
Keep inspection records, test results, photographs and sign-off documents for the remedial work. If the original contractor fails to complete the agreed work or a new defect appears, record that event separately and return to the contract’s notice and dispute procedures. If a third party is appointed instead, preserve the quotations, scope, invoices and evidence explaining why that route was selected.
What an employer can require when allowing the original contractor back
Permission is not the same as unrestricted access. Subject to the contract, an employer can seek a controlled arrangement that answers practical questions before anyone returns:
- Which defect items are included, and which are expressly excluded?
- What method statement, programme and completion date apply?
- Who supplies labour, materials, temporary protection, testing and waste removal?
- How will the contractor coordinate with occupants, neighbours and other trades?
- What inspections or tests are required before the work is accepted?
- Who pays for making good damage caused by the remedial operation?
- What happens if opening-up reveals additional work?
- How are disagreements about completion or adequacy referred under the contract?
These controls protect the project record and reduce uncertainty about what the permission covered. They do not create a new legal right for the contractor; they define the terms on which the employer chooses to allow access.
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When damages may be the preferred response
Damages are the source’s first alternative to physical rectification. They may be considered where the employer needs to keep control of the site, where delay would be unacceptable, where confidence in the original contractor has broken down, or where another party is already mobilised. Whether damages are available, how they are measured and what losses can be recovered are contract- and fact-specific questions.
An employer considering this route should preserve evidence of the defect, the reasonable scope of corrective work and the financial consequences claimed. Do not treat an estimate as proof of liability or assume that the cheapest quotation defines the recoverable amount. The contract may contain procedures that affect a damages claim, so advice should be taken before commissioning irreversible work if the cost is likely to be disputed.
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The third option identified by Hadnutt is rectification by a third party. This gives the employer control over selecting another contractor or specialist and over coordinating the work with current site operations. It can also create a clearer separation between the original contractor’s defective work and the corrective work, provided the condition is documented before alteration.
Before opening up or removing work, record its state and consider an independent inspection. Obtain a defined scope and keep competing quotations or the reasons for selecting a particular specialist. Retain invoices, completion records and test results. These documents help explain what was done and why, but they do not by themselves answer whether the original contractor is legally responsible or what amount is recoverable.
Contract terms and project facts that can change the outcome
The available general statement does not establish how any of the following will operate on a particular project:
- an express defects-liability or rectification clause;
- a clause requiring the contractor to be given notice or an opportunity to inspect;
- conditions governing access after practical completion;
- provisions dealing with instructions, variations, testing or certification;
- limitations, exclusions, caps or set-off provisions affecting damages;
- insurance, health-and-safety or occupancy restrictions;
- adjudication, arbitration, court or other dispute-resolution procedures;
- the governing law and jurisdiction stated in the contract; and
- evidence about who caused the condition, whether the employer contributed to it and whether later work altered the evidence.
Those matters can affect both the remedy and the process for pursuing it. The article’s common-law explanation should therefore be used as a starting point for reviewing the actual agreement, not as a substitute for that review.
Common mistakes to avoid
Assuming an offer to repair is an entitlement
A contractor’s willingness to return may be commercially helpful, but the source says it does not create a common-law right after practical completion. Treat the proposal as a request for permission and respond through the contract’s communication channels.
Giving informal or unlimited access
Allowing people onto the site without defining the work, dates and controls can make it difficult to establish what was authorised. Use a written scope and keep a record of inspections.
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Destroying evidence before documenting it
Covering, removing or altering defective work may make later assessment harder. Photograph and record the condition first, and obtain technical advice where opening-up is necessary.
Ignoring notices and deadlines
The accessible source does not list any project deadlines. That absence is not evidence that deadlines do not apply. Check the contract promptly and obtain advice on any notice, limitation or dispute timetable.
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Hadnutt’s article supplies a general position about common-law rights and the employer’s choice. It does not decide a particular dispute, quantify costs or establish the effect of a specific contract. Those questions require the project documents and appropriate professional advice.
A practical decision record
For a defensible file, an employer can keep a short decision record containing:
- the practical-completion certificate and date;
- a schedule of alleged defects with photographs and technical observations;
- the relevant contract clauses and any notices sent or received;
- the contractor’s request to return, if one was made;
- the reasons for permitting original-contractor rectification, choosing damages or appointing a third party;
- the agreed scope, programme and site controls for any remedial work; and
- inspection, testing, payment and close-out documents.
This record does not predetermine liability. It shows how the employer exercised the choice described in the source and preserves the information needed if the parties later disagree.
What this means for contractors
A contractor that discovers or is told about a post-completion defect should not assume that it can simply mobilise. It should ask for the employer’s permission, propose a defined method and programme, and check the contract for any notice or access procedure. A prompt, technically credible proposal may help achieve a commercial solution, but it does not remove the employer’s ability to select damages or third-party rectification.
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The contractor should also keep its own records: the alleged defect, relevant drawings and specifications, site instructions, photographs, inspections, communications and any work it proposes. If access is refused, the contractor should obtain legal advice before characterising that refusal as a breach, because the source’s general statement does not resolve contract-specific rights.
Bottom line for a live project
After practical completion has been certified, the original contractor does not have an automatic common-law right to return and rectify its own defective work. The employer must decide whether to permit that return, seek damages or arrange rectification by a third party. The safest application of the principle is to identify the defect, preserve evidence, read the actual contract and document the permission or alternative remedy before work starts. A construction-law adviser should review the project documents where liability, cost or access is disputed.
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