Was the water proofing firm appointed as a domestic sub-contractor?


I am hoping for a bit of understanding around an issue I have.

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 water proofing firm to go into the property 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 water proofing company’s contractual role.  Am I right in saying that the water proofing 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.

Hopefully that makes sense and I would greatly appreciate your advice.

Samir, Leicester


Hello Samir. In a nutshell, because you instructed, managed and paid the water proofing 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 does 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 (i.e. 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 P. Gerard, April 2017

The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.

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