Problem: Unsure what to name sub-contractor in a completed project report
My building company started a refurbishment contract a few months ago and were appointed under a JCT Minor Works Building Contract. When carrying out the works, an area of damp was found and I instructed a specialist waterproofing firm to go into the property and install a vertical DPC and apply Sika render.
I am now writing up a report about the project for the client and am trying to understand the waterproofing company’s contractual role. Am I right in saying that the waterproofing company was appointed as a domestic sub-contractor as they were paid and managed by my company?
I understand minor works contracts are not suitable for named specialists but I was wondering whether this was true if the specialist had to be appointed after the contracts were signed.
Response: When is it a domestic sub-contractor?
In a nutshell, because you instructed, managed and paid the waterproofing company, it would most likely be a domestic sub-contractor. I say likely, because you may have instructed the sub-contractor on behalf of the employer (providing you had authority and made this known to the sub-contractor at the material time), whilst managing and payment do not necessarily indicate a contractual obligation.
If the sub-contractor had addressed its estimate to your company and you accepted this estimate without reference to a third party (ie the employer), then your company would have entered into a legally binding contract with the sub-contractor and thus the sub-contractor would be a domestic sub-contractor.
Under the JCT Minor Works Building Contract, there are no provisions for nominated or named sub-contractors. Any sub-contractors would either be employed by the principle contractor or directly engaged by the employer. If the employer wishes to nominate or name a specialist contractor, then there are other contracts in the JCT suite that will accommodate this.
© Michael Gerard 2017
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.