Malcolm Taylor (24 March, Letters, page 34) supports the JCT provisions on practical completion and partial possession and disagrees with my comments on these clauses (“A hard way to earn £2”, 11 March, page 60).

He is right to say that if the parties have complied with the JCT provisions, their problems could have been avoided. Unfortunately, as we all know, the reality of construction projects is often quite different from the arrangements JCT has provided.

It is part of the construction lawyer’s art to anticipate what might happen during the course of a project and draft or amend the contract to deal with it. Partial possession is particularly difficult; under JCT contracts it is deemed practical completion for certain purposes,

but not all. If, as in the Birse case, the employer goes into possession when the building is not really practically complete, the JCT wording does not provide a mechanism for finishing off the works so that they become physically practically complete. A snagging list will continue to be used as a way of dealing with this, until the policy of “zero defects” can actually be achieved.

Gillian Birkby, Fladgate Fielder

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