A common feature of most, if not all, construction projects is the dreaded “snagging list” at practical completion of the works. Of course, practical completion itself is perhaps easier to recognise than to define, which unsurprisingly leads to confusion about what constitutes snagging and what effect it has on completion of the works.
A useful starting point is the meaning of practical completion. However, despite the importance resting on the determination of practical completion, due to the contractual and legal implications for both the contractor and the employer, there is no precise legal definition and most standard form building contracts do not define it. Instead, its meaning is left to the usual legal rules of interpretation, and from case law. Here’s how one judge defined it: "One would normally say that a task was practically completed when it was almost but not entirely finished, but 'practical completion' suggests that that is not the intended meaning and that what is meant is the completion of all the construction work that has to be done." Another judge said: "Practical completion means completion for all practical purposes, and what that completion entails must depend upon the nature, scope and contractual definitions of the Works, as they may have developed by way of variation or architect's instructions." One more, for good luck: "Practical completion is a legal term of art understood to mean a state of affairs where the works have been completed free from patent defects, other than ones to be ignored as trifling." However practical completion is defined, it should not be taken for granted that just because a building is capable of being, and indeed has been, inhabited it therefore follows that the works must be regarded as practically complete. Whilst occupation of a building may have some bearing on the matter, it is by no means definitive by itself. It is standard practice to issue with practical completion a list of incomplete defective items, “snagging list”, which need attention but are not sufficiently significant to prevent completion, the "de minimis”, principle. The majority of standard form contracts do not recognise this practice, including by far the most used forms, the JCT suite of contracts. A list is often produced by those certifying practical completion as a practical measure with no formal contractual effect; and lists sometimes, incorrectly, include incomplete works, making it difficult to identify the fairly minor items, which often leads to uncertainties and disagreements about whether practical completion has been reached. Final thoughts Case law makes clear that snagging should not be a bar to practical completion unless the number of snagging items, taken together, would prevent the building from being used for its intended purposes. This would suggest that the intended use of a building may be relevant when considering the type of defect that should be tolerated when certifying practical completion. However, it would seem that there is no case that sets out a hard and fast limit for the number of de minimis defects that would bar practical completion.
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Dr. Andrew MilnerDBEnv, LLM, MSc, BSc, MRICS, MCIArb Archives
February 2023
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