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Net contribution clauses and the Defective Premises Act

8th Jul 2024 | Construction & Engineering
Man in a high vis jacket gesturing to the floor, in front of building work

In the recent case of Vainker and another v Marbank Construction Ltd and others [2024], the Technology and Construction Court provided some key guidance on claims made pursuant to the Defective Premises Act 1972 (DPA). 

Kieran Woonton, solicitor in our construction team, summarises the key guidance and how this could apply in construction disputes.


The claimants engaged the first defendant, Marbank Construction Ltd (Marbank), to build a residential property in Strawberry Hill, Twickenham. The third defendant, SCD Architects Ltd (SCD), was appointed as the architect for the project. 

The claimants brought a claim against both Marbank and SCD for alleged defects that made the property unfit for habitation, pursuant to section 1 of the DPA.

The DPA and Net Contribution Clauses

Section 1 of the DPA places a duty on persons taking on work for, or in connection with, the provision of a dwelling to see that the work is done in a workmanlike and/or professional manner, with proper materials and so that the dwelling will be fit for habitation when completed.

SCD sought to rely on a net contribution clause that would have limited their liability to

“such sum as it is just and equitable for the Architect to pay having regard to the extent of the Architect’s responsibility for the loss and/or damage in question”.

A defendant to a claim under the DPA cannot limit their liability by relying on a net contribution clause. This is because section 6(3) of the DPA states that:

“Any term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability arising by virtue of any such provision, shall be void.”

As such, the judge found that the net contribution clause in SCD’s appointment was not enforceable because it restricted SCD’s liability under the DPA.

Damages – not just the bare minimum to make fit for habitation

The judge also considered the award of damages for a successful claim under section 1 of the DPA.

To be successful, a claimant must demonstrate that the inadequate work or materials have led to a defect that means the dwelling is not fit for habitation.

It is not enough to prove only that the contractor or professional consultant did not use reasonable skill and care, or that the works failed to meet the intended design.

If a claim is successful, the award of damages may go beyond the cost of remedial works to make the dwelling fit for habitation; the judge may also consider the design intent of the house and award damages on that basis.

To use the facts of the case as an example, SCD was held liable for failing to notice the errors in the staircase balustrades installed by Marbank, which rendered the property unfit for habitation on the basis that it posed a serious health and safety risk.

SCD argued that replacing the balustrades would be disproportionate because a handrail could be installed to relieve the danger.

However, the judge rejected this argument stating that:

“the recoverable damages should … be the cost of making the dwelling fit for habitation in the way it would have been had the services been supplied in a professional manner”.

A useful reminder…

This case is a useful reminder that it is not possible for a party to limit or exclude their liability pursuant to the DPA. 

The case also provides useful guidance on how the courts will assess fitness for habitation, as well as showing that damages for DPA claims may be awarded by reference to the works and/or services that should have been provided had the DPA not been breached.

For more information on the above changes, or if you have any questions on construction law in general, please contact Kieran Woonton at  [email protected] or 0191 211 7820.

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