Ineffective legal remedy for Building Defects

Applying the basic principles of English contract law, if building work is defective due to a breach of contract, the remedy is the cost of correcting the defects. 

Another approach is to retain the defective work as built and make an equitable deduction in payments to the builder.  Deductions might be based on whichever of the following is applicable: the savings made by the builder’s not having to correct the work, the loss of value in the finished building caused by retaining the defects, the lower cost of building poorly, the foreseeable increased cost of building maintenance, loss of longevity, etc.

The courts have in most cases based remedies on the cost of correction or of diminution in value.  There are exceptions where the courts have awarded nominal damages only.  This has occurred where the defects caused loss of amenity for the owner’s personal preferences.  The case of Ruxlev Electronics and Construction Ltd. v. Forsyth is often cited in this connection.

In a more recent case the courts awarded nominal damages for a failure to build a garage to the specified dimensions.  While the logic by which the courts held that nominal damages were an appropriate remedy can be distinguished from Ruxley, the effect is the same in so far as it makes it uncertain that a contract requiring building work to be done precisely as drawn and specified can be enforced effectively.  Where does this leave building professionals who advise on and prepare building contracts?  Do we have to say to our clients, if you enter a building contract based on agreed drawings and specifications, you may have to put up with a deficient building or pay twice?