Temporary Disconformity Revisited

Ellis Baker and Anthony Lavers

May 2007

A paper given to a meeting of the Society of Construction Law in Bristol on 26th October 2006.

This paper considers situations where, during the currency of a project, the works do not comply with the contract requirements; the authors look at the legal consequences flowing from that, specifically the question of whether the owner is entitled to a remedy against the contractor. The paper revises and replaces that published in June 2006 (number 125), presented to a meeting of the Society in London; this paper follows a further presentation given to a meeting in Bristol and includes the result of a straw poll taken amongst attendees. The authors look at three different scenarios - stylised factual situations - adapted to illustrate the applications of different views of temporary disconformity. Views range from that of Lord Diplock in Kaye v Hosier & Dickinson to oskill LJ in Lintest Builders v oberts, and Hudson. 'Does the idea of 'temporary disconformity' have a role to play in English law?' the authors ask.

Introduction - The issue - A range of views - Three scenarios - Applying the range of views to the scenarios - The position in English law - Assistance from foreign jurisdictions - The position now, and looking forward - The test of remediability - Conclusions.

The authors: Ellis Baker MA, LLM(Cantab), MCIArb solicitor, is a partner and head of the Construction and Engineering Practice Group at the London office of global law firm White & Case, and Anthony Lavers LLB(Lond), MPhil, PhD, DLitt, MCIArb, MICS barrister, is Professional Support Lawyer to the Construction and Engineering Practice Group at White & Case and Visiting Professor of Law at Oxford Brookes University; he was chairman of the Society of Construction Law 2004-2006.

Text 15 pages.

PDF file size: 155k