Investigating Building Defects: Do you need to knock it down and start again?

How should you go about investigating a defect in a building? Frequently a problem becomes evident (such as
failure to meet performance specified standards, water ingress, movement and cracking etc), with no known
cause when the defect is first noticed, nor any certainty as to the extent of the problem. The building may be
still under construction, occupied, or at some intermediate stage.

In respect of investigation, key objectives to be considered which will influence the strategy will include: (i)
ascertainment of the full extent of the problem; (ii) assessment of the necessary nature and extent of remedial
works; and last but not least (iii) gathering of evidence for the purpose of litigation, arbitration or other form of
dispute resolution, where relevant.

This article is intended to set out a short checklist for consideration.

What are the known defects?

Known defects can be identified and grouped into categories such as: defects giving rise to damage (such as
defective flashings allowing water ingress); defects requiring opening up (such as water ingress within a
basement, from an unknown cause); defects not giving rise to other damage (such as use of a non-specified but
otherwise adequate product). These categories will be helpful when considering the further steps required.

If a full survey of defects is undertaken it is important to record any limitations on the scope of the survey. In
the English court case of Ian McGlinn v Waltham Contractors and others [2007] EWHC 149 (TCC) (“McGlinn”),
HHJ Coulson (as he then was) questioned why an investigation which was “intended to be as exhaustive as
possible” had not recorded certain alleged defects which could have been seen without opening up, which
defects later became some of the most important items in the litigation (for example, the quality of the roofing
materials). It is likely that you will wish to obtain the as-built construction drawing and specification.

What are the potential causes?

The full range of possible causes should be considered, weighted according to likelihood of occurrence. All
possible causes should be considered even where the likelihood of occurrence is small, in order that such a
possibility is not overlooked as the investigation goes forwards.

How can these potential causes be investigated?

The options for investigation will need thorough consideration and the analysis recorded. This will assist at a
later stage if questions arise as to the reasonableness of the steps taken. These will be influenced by many
factors, including:

• Is the project still under construction, pre taking over? Most standard forms of construction contract
provide the possibility for the employer to instruct investigatory work; such as FIDIC Red Book Sub-Clause
7.4; or JCT Standard Building Contract clause 3.17.

• Is the project taken over and still within its defects notification period / rectification period? For example a
failure to pass Test after Completion under FIDIC Yellow Book Sub-Clause 12.4. Contract procedures must
be considered where relevant.

• Is the performance certificate/final certificate issued? If so, are there ongoing warranties which still need
to be respected?

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• How can site access be arranged?

• Is there a risk that the evidence of the construction may be removed before it can be inspected?
Arbitration rules such as ICC Article 23, UNCITRAL Article 26, or Section 38(4) of the English Arbitration
Act 1996 provide a tribunal with the power to order conservatory or interim measures. Where a tribunal is
not yet appointed, under ICC rules, a Pre-Arbitral Referee also has similar powers under Article 2.

• Are there specific procedures which should be followed, such as testing of cladding using a CWCT
recognised test method for site testing for watertightness.

• Is it reasonable to investigate only sample areas? This issue frequently arises, as to the extent to which a
sample may be representative of the whole. Where possible sample areas should be selected by
agreement. In the English case of Carlisle Place Investments v Wimpey Construction [1980] 15 BLR 109,
the court supported the arbitrator’s decision to limit investigations to up to 25 out of 83 roofs.

• Reasonableness of approach and cost is imperative:

- The scale of the investigations should be appropriate. In the McGlinn case, a full-scale operation took
place including the complete stripping of the roof. HHJ Coulson later held that “At least some of the
opening up work seems to have been unjustified on any view of the evidence of defects or damage as it
then existed…”

- The objective should be the reasonable investigation of the defects. In the McGlinn case HHJ Coulson
held: “Considerable opening up works were authorized in areas where there was no, or very little,
reason for Mr McGlinn’s team to have even a reasonable suspicion about work which had been
performed.”….. “… it is difficult not to conclude that the focus of Mr McGlinn’s team … was on finding
defects, even in areas where there had been no problems and no signs of damage.”

- Any opening up work should be performed such that reasonable reinstatement/remedial work can be
undertaken. In the McGlinn case HHJ Coulson held: “I have no doubt that those [investigation] works
were done carelessly, with no real regard for the materials being removed, and no real thought given to
whether or not the elements concerned could be re-used. It is impossible to reconcile the destructive
way in which this work was carried out with a real desire on the part of Mr McGlinn and his team to
repair, rather than demolish, the property”

• Intrusive and non-intrusive investigations will need to be considered. There may be non-destructive
techniques available to investigate concealed construction, such as infra-red thermography or ground
penetrating radar.

• Where possible, agreement is preferable between the interested parties as to the steps to be taken.

Recording the defects

It is surprising how frequently defects are found and recorded, but there is no recorded indication of the
location, extent or frequency of the defect. This can give problems later on. Key points are:

• Keep a thorough and logical record of the condition before investigation, what was done and what was
found.
• Record with sketches as well as photographs/video where possible.

• Take samples. Some may need to be analysed by a laboratory.

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• Have the flexibility on site to decide, on the basis of what has been found, whether to extend the
investigations further.

Is it likely that further related defects remain concealed?

The possibility of the same or related defects occurring elsewhere must be considered, even if problems are not
manifest.

However, there will be an important overriding test of reasonableness to be applied to the extent and cost of
opening up undertaken. In the McGlinn case the judge held that “ “It is very difficult to justify spending
£687,000 [on investigation] in order to decide whether or not to spend £870,000 on remedial work..” “.. this
was an absurdly large sum to have spent on investigation and opening up, particularly when the basic remedial
scheme, for all items, was costed by the Claimant’s team in the sum of just £870,066.”

What remedial work is required?

This article is not intended to extend to a consideration of strategies for remedial works. The relevance to the
investigation of defects, however, is:

• Clearly, the scope of investigations needs to be sufficient to draw conclusions based on evidence, as to
what remedial work is needed.

• During remedial works there may be a continuing need to monitor and record the existing construction
exposed, for the purpose of checking assumptions.

• Early consideration of remedial works options can be helpful to inform the extent of investigations
required. If an element of investigation is overlooked, this may be highlighted only when the remedial
work is being considered.

This checklist should assist when deciding how you should go about investigating a defect in a building.

By Christopher Miers, Probyn Miers Ltd.

Society of Construction Law (Gulf), Dubai and Abu Dhabi, May 2010.

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