Construction Defects Claims: 5 Top Tips for Employers

Aanya Gujral and David Owens set out five top tips on how best employers can protect their interests when it comes to construction defects.

Construction defects are an almost inevitable feature of construction projects. The real issue is rarely whether defects arise at all, but how they are identified, managed and, where necessary, pursued.

Recent case law shows that, even where defects are serious and the underlying problem is clear, recovery is not automatic. Employers will still need to establish breach, causation and recoverable loss by reference to proper evidence, rather than simply pointing to the existence of a defect.

That can make defects claims technically complex, time sensitive and, at times, frustrating. However,  employers who take the right steps early, including reviewing the contract carefully, preserving the factual record and (where needed) obtaining appropriate expert input, are usually in a far stronger position to protect their interests and pursue recovery effectively.

In this article, we set out five top tips to consider when managing defects claims.

1. Check that it is a defect under the contract

A common mistake is to assume that anything unsatisfactory on site is automatically a defect. It is not always that simple.

The starting point is always the contract. There is no universal definition of a “defect” across construction contracts, although NEC is one of the standard forms that does define the term. Where the contract does not define it, construction commentary often refers to Yarmouth v France (1887) 19 QBD 647 as useful guidance, namely that a defect is “anything which renders the plant unfit for the use for which it is intended, when used in a reasonable way and with reasonable care”.

That is why the first practical question should always be: what did the contract require? The second is whether the relevant element of the works performs as required or is fit for its intended purpose, where that is the applicable standard. Something may amount to a defect because it falls short of an express specification, even if it appears to function. Equally, a concern about quality or appearance will not necessarily be enough unless it can be tied back to a contractual standard.

It is also worth identifying the nature of the issue early. Workmanship, design, materials or products, and specification failures can raise different questions about responsibility and evidence. That is often where independent expert input is most useful at the outset.

2. Check carefully for defects before certifying completion

Under most construction contracts, certification of practical completion triggers important consequences, including occupation, release of part of the retention and the start of the defects or rectification period. It is important to note that, although the term ‘practical completion’ is widely used, some contracts define it while others do not. Where it is not clearly defined, it is usually assessed by reference to the condition of the works at the time, in particular whether they are complete enough to be used for their intended purpose and whether any remaining issues can properly be dealt with as part of the snagging process. This is important because it affects whether practical completion can properly be certified.

In any case, before practical completion is certified, the works should be inspected carefully for patent defects, which are defects that are visible or ought to be identified on a reasonable inspection. Latent defects are different: they are hidden defects which may only emerge later. This distinction matters because visible defects and incomplete snagging items may prevent practical completion from being certified, whereas latent defects may still exist after certification. A completion certificate therefore does not prove that the works are free from defects.

The recent case of One Hyde Park Ltd v Laing O’Rourke Construction South Ltd [2026] EWHC 155 (TCC) shows why this is important in practice. In that case, latent defects were discovered after completion in the chilled water pipework, butterfly valves, soldered joints and façade maintenance cradle, and those issues later formed the basis of a substantial defects claim.

3. Use the rectification process properly

Most standard form construction contracts include a mechanism for dealing with defects after completion. Under JCT, this is usually the rectification period. Under NEC, the terminology and structure differ, but the broad point is the same: the contract will usually set out a process for notifying defects and requiring them to be corrected within a defined period.

Defects should be notified in accordance with the contract, the contractor should usually be given the opportunity to inspect and, where applicable, to return and make good the works, and a clear record should be kept of what has been identified, notified and remedied.

That process should be followed carefully, as the contract may affect what can be recovered if that process is not followed. If the contractor should have been given the opportunity to return but was not, that may limit the employer’s ability to recover the full cost of remedial works carried out by others.

4. Preserve the relevant evidence and consider seeking independent expert input

A defects claim will often turn on the quality of the evidence. It is not enough simply to identify a defect; the employer must distinguish between its existence, its cause and the loss said to follow. In practice, this requires showing:

• what caused the defect;
• who is responsible for the defect;
• what remedial works are reasonably required; and
• what loss is recoverable.

To support a defects claim, key project documents should be gathered early. These typically include the contract, specifications, drawings, inspection records, photographs and contemporaneous correspondence.

Obtaining early independent expert input is also often helpful. Instructing an independent expert can assist with identifying the cause of the defects, defining the appropriate remedial works and assessing whether the costs claimed are reasonable. Courts expect these issues to be supported by proper evidence rather than assumption. The burden of proof remains on the claimant, even where the defendant does not participate in the proceedings. This was reflected in the One Hyde Park decision, where the claimant still had to prove its defects claim on the evidence before the court.

Employers should record defects as soon as they are identified, including through photographs, inspection records and contemporaneous communications, as this evidence can be critical later on when seeking to establish liability and recover losses.

5. Identify the recovery routes early

If defects cannot be resolved through the contractual rectification process, employers should identify early who can be pursued and on what basis. Depending on the project structure, that may include claims under the building contract, collateral warranties, third party rights, latent defects insurance and, where relevant, statutory routes.

This matters because, once the rectification period has ended, the contractor will usually no longer be obliged to return, retention will often have been released, and the focus may move from fixing the defect to proving responsibility, loss and the right to recover.

In residential projects, employers should also consider whether any statutory claims may be available:

• Section 1 of the Defective Premises Act 1972 imposes a duty to do the work in a workmanlike or professional manner, with proper materials, so that the dwelling is fit for habitation when completed.
• Following the introduction of the Building Safety Act 2022, the limitation periods for such claims have been extended, which has led to a renewed focus on Defective Premises Act claims and may allow employers to pursue claims that would previously have been time barred.
• The Building Safety Act may also provide further routes to recovery, including Building Liability Orders and Remediation Contribution Orders.

In practical terms, employers should check four points early:

1. Who is responsible for the part of the works where the defect has arisen?
2. What claim can be brought against that party?
3. What documents support that claim, including the contract, any warranties, the insurance terms and the project records?
4. Whether the claim is still within the relevant time limit.

Defect Claims – Conclusion

Defects claims are rarely simple, and they can become technically and procedurally demanding quite quickly. However, that does not mean an employer is without options. A careful review of the contract, a clear strategy on inspection and rectification, proper evidence gathering and timely expert input can all help place the employer in a stronger position. Where those steps are taken early, defects are often easier to manage, and recovery routes are usually clearer.

Visit our Building Safety Hub for more information.

Aanya Gujral is an Associate and David Owens is a Partner at Sharpe Pritchard LLP.

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This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it..