Temporary Disconformity

Ellis Baker and Anthony Lavers

July 2005

A paper given to the Society of Construction Law in London on 5th April 2005

PLEASE NOTE: This paper has been revised and replaced by paper number 139, 'Temporary Disconformity evisited', a paper given to a meeting of the Society of Construction Law in Bristol on 26th October 2006.

The 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 as to whether the owner is entitled to a remedy against the contractor. They 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.

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

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 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 is also the current Chairman of the Society of Construction Law.

Text: 12 pages

PDF file size: 69k