Problem: My company recently completed a major refurbishment of a large dwelling in Cambridgeshire for a private individual, having been engaged as the designer and builder. My in-house designer selected a floor covering and obtained the customer’s approval, and then we placed an order with a sub-contractor for the supply and installation. The flooring was subsequently laid but soon after the colour faded quite badly. The floor covering manufacturer states that the colour fading is within the BS margin of error, although no evidence of this has been provided, whilst the contractor who laid the covering said the problem is nothing to do with it. The customer wants the whole floor covering taken up and replaced without charge. Who foots the bill?
Harry, Stoughton
Response: Hello Harry.
Your contract with your customer: Your customer is acting as a consumer. Although I have not seen the Terms and Conditions between your company and the customer, there may be an implied term insofar that the flooring supplied was to be of a satisfactory quality and / or reasonably fit for purpose. If there is a fit for purpose term, then from the information provided, the customer would have relied on your company’s skill and judgement to select a floor covering that was fit for purpose, and even if any test results come back supporting the fading is within the tolerances allowed under British Standards, it may still not mean that the floor covering is fit for purpose, as the fading could still be considered too severe for the intended use, unless you informed the customer of this from the outset.
The case against your sub-contractor: Again, I have not seen the Terms and Conditions between your company and the sub-contractor. However, your company did not rely on the sub-contractor’s own skill and judgement as you had specified the covering. Therefore, there will be no implied warranty from the sub-contractor that the covering would be fit for purpose because it had not selected the covering. This does not though prevent the sub-contractor from being liable as to the quality of the covering but, if it can show that the covering met the relevant British Standard, then I consider that your chance of success in bringing a claim against the sub-contractor is poor.
The case against the manufacturer: I have not seen the Terms and Conditions between the sub-contractor and the manufacturer. However, and notwithstanding your claim in contract against the sub-contractor, it is likely that the manufacturer is under an obligation to supply the material to a satisfactory quality.
© Michael P. Gerard MSc, PGDipLaw, PGDipBar, FCIOB, MCIArb, MAE
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.
Author background
Michael is a Barrister, Chartered Builder, Registered Adjudicator & Accredited Expert in quantum and planning matters. He is Managing Director of Michael Gerard & Co www.michael-gerard.co.uk, a company of chartered building consultants and quantity surveyors who provide a specialised service in the areas of construction law, quantum, programming, business recovery and insolvency support to the construction industry. Michael is also a practising solicitor and consultant with Silver Shemmings LLP.