What a Practical Completion Certificate Actually Means
WHAT HAPPENED · ILLUSTRATIVE COMPOSITE
The building is finished. The client’s staff are moving furniture in. The contractor asks for the certificate and is told it will follow once the snagging list is closed—forty items, none of which stops anybody using the building.
Six weeks pass, and Liquidated damages continue to accrue at the contracted rate because, on paper, the works are not complete. Retention stays where it is. The defects period has not started, so its expiry date moves six weeks further away too.
The contractor eventually asks a different question: not whether the list is closed, but what test the certificate is supposed to apply. Nobody on either side can answer it, which is why the argument has run six weeks.
“A snagging list is not the test. On both main forms the question is whether what remains stops the employer from using the building for its purpose—and on one of them, silence hands the contractor the certificate anyway.”
What the certificate actually does
Five things at once. Practical completion is the busiest single moment in a construction contract. It stops liquidated damages running. It releases the first half of retention. It starts the defects liability or notification period, which fixes when the second half comes back. It generally moves the risk of damage to the works across to the employer, and with it the insurance. Possession passes.
And yet. For a document carrying that much freight, the striking thing is how few project teams can state the test being applied — and how often the argument is conducted about a snagging list rather than about the standard the contract sets.
Scope and sources. This article addresses the JCT Standard Building Contract with Quantities 2016 and the FIDIC Conditions of Contract for Construction 2017 (2nd edition). The JCT 2024 suite is not covered, and neither is NEC4, which uses a different concept of Completion. The case above is a constructed composite; the clause mechanics and the case law are real.
JCT — an opinion, and a condition nobody expects
The clause. Clause 2.30 is short and worth reading closely. When in the Architect or Contract Administrator’s opinion practical completion of the Works or a Section is achieved, and the Contractor has complied sufficiently with clauses 2.40 and 3.23 in respect of the supply of documents and information, the certificate shall forthwith be issued.
It is a judgement. Two things follow that catch people out. The first is that the test is expressly an opinion — the A/CA’s. It is not a measurement, not a percentage of completion, and not a count of open snags. A certificate can be refused on a view the contractor thinks unreasonable, and the remedy for that is a dispute, not a recalculation.
And it is not only about the building. The second is the precondition. Practical completion under JCT is not purely about the state of the building. The Contractor must also have complied sufficiently with the document and information obligations at clauses 2.40 and 3.23 — as-built drawings, information for the Contractor’s Designed Portion, health and safety material. A physically finished building with an incomplete O&M handover has not met the clause.
The date that governs. Note also what the clause does with the date. Practical completion is deemed, for all the purposes of the Contract, to have taken place on the date stated in the certificate. Not the date the works were actually finished — the date written on the document. That is why a certificate issued six weeks late with a current date, rather than backdated to when completion was actually achieved, costs the contractor six weeks of liquidated damages.
Silence achieves nothing. And there is no deeming provision. If the A/CA never forms an opinion and never issues anything, nothing happens automatically. The contractor’s route is to challenge the failure, not to wait for a clock to run out.
FIDIC — a standard, a deadline, and a default
The application. FIDIC approaches the same moment through an application. The Contractor may apply for a Taking-Over Certificate by giving a Notice to the Engineer not more than 14 days before the Works will, in the Contractor’s opinion, be complete and ready for taking over.
The Engineer’s two options. The Engineer then has 28 days after receiving that Notice to do one of two things. Issue the Taking-Over Certificate, stating the date on which the Works were completed in accordance with the Contract — except for any minor outstanding work and defects, listed in the certificate, which will not substantially affect the safe use of the Works for their intended purpose. Or reject the application by Notice with reasons, specifying the work to be done, the defects to be remedied and the documents to be submitted.
The test itself. That standard is the part worth memorising, because it answers the snagging-list argument directly. The question is not whether items remain. The sub-clause expressly contemplates that they will, and requires them to be listed. The question is whether they substantially affect the safe use of the works for their intended purpose.
The default. And FIDIC does what JCT does not. If the Engineer neither issues the certificate nor rejects the application within the 28 days, and the stated conditions have been fulfilled, the Works are deemed to have been completed in accordance with the Contract. Silence hands the contractor the outcome. Engineers who let the window pass while a snagging argument runs should understand what they are conceding.
What the courts actually said
The authority. Practical completion went unconsidered by the Court of Appeal for roughly fifty years until Mears Ltd v Costplan Services (South East) Ltd [2019] EWCA Civ 502. The dispute concerned student accommodation in Plymouth where 56 rooms had been built outside a 3 per cent size tolerance in an agreement for lease. Coulson LJ gave the leading judgment, dismissing the appeal, and used it to summarise the law.
What Coulson LJ held. The propositions are worth having in front of you, because they are more contractor-friendly than most snagging meetings assume. There are no hard and fast rules; practical completion is easier to recognise than to define. Latent defects cannot prevent practical completion, since by definition nobody knows about them. There is no difference between an item of work not yet done and a defective item needing remedy — both are simply outstanding.
And the operative pair. Then the two that decide most arguments. Patent defects that are trifling will not prevent practical completion; and whether an item is trifling is a matter of fact and degree, to be measured against the purpose of allowing the employer to take possession of the works and to use them as intended. Finally, the mere fact that a defect is irremediable does not in itself prevent practical completion.
The convergence. Read that against FIDIC Sub-Clause 10.1 and the convergence is striking. The court measures trifling against the purpose of taking possession and using the works as intended; FIDIC asks whether outstanding items substantially affect the safe use of the works for their intended purpose. Two drafting traditions, arriving at the same question. Neither asks how many items are on the list.
One qualification. A caveat for Nigerian readers: Mears is an English Court of Appeal decision. It is persuasive here, not binding, and it construes an agreement for lease rather than a JCT certificate directly. It is cited for the general principle, which is how the English courts themselves have since used it.
“The question is never how many items are on the list. It is whether what remains stops the employer using the building for the purpose it was built for.”
The case for withholding the certificate
The obvious objection. Everything above reads as though certifiers are too cautious. The employer’s side of it deserves a proper hearing, because the incentives are real and they are not disreputable.
The argument. Practical completion is the moment an employer loses most of its leverage. Liquidated damages stop, half the retention goes back, and the contractor’s attention moves to the next job. Every experienced client team has watched a snagging list that was going to take three weeks take seven months once the certificate was issued. Withholding is the only practical pressure left, and a certifier who issues on a technically correct reading while knowing the list will not be closed is not obviously serving the employer well.
The answer. There is force in that, and the answer is not that the employer should simply accept it. The answer is that withholding the certificate is the wrong instrument for the job. It is legally fragile — on the Mears propositions a refusal over trifling items is vulnerable, and under FIDIC a certifier who lets 28 days pass may lose the point entirely. The instruments that actually work are the ones negotiated beforehand: a schedule of outstanding works annexed to the certificate with agreed dates, a retention arrangement geared to closing it, or a defined completion standard written into the preliminaries.
Where that leaves it. Which is the wider point. The snagging argument is a symptom of a definition that was never agreed. Both forms leave real room to specify what completion means on this project — and almost nobody uses it.
What to settle before you get near completion
First. Define completion in the contract documents. Both forms permit a project-specific standard in the preliminaries or specification — commissioning results, statutory sign-offs, a defined documents pack. A definition agreed at tender is worth more than any amount of argument in month twenty.
Second. Track the document obligations from the start. Under JCT the certificate cannot properly issue until clauses 2.40 and 3.23 have been complied with sufficiently, and under FIDIC the conditions include manuals and training. As-built information assembled in the final fortnight is how physically complete buildings miss their certificates.
Third. On FIDIC, diarise the 28 days from the Contractor’s Notice on both sides. The Engineer needs it because silence concedes the point; the Contractor needs it because the deemed date is worth knowing and claiming.
Fourth. Agree the snagging list as a schedule to the certificate rather than a barrier to it. FIDIC already contemplates exactly this by requiring minor outstanding work and defects to be listed in the Taking-Over Certificate. Adopting the same discipline under JCT converts a standoff into a programme.
THE BROADER POINT
Nobody is counting the items. They are asking whether you can use the building.
Practical completion is not a percentage and it is not the length of the snagging list. Under JCT it is the certifier’s opinion, subject to a documents precondition most teams forget, and the date on the certificate governs everything that follows. Under FIDIC it is whether what remains substantially affects safe use for the intended purpose—and if the Engineer lets 28 days pass, it is deemed achieved anyway. The courts ask the same question both forms do: does what is left stop the employer using the works as intended? Define that at tender, and the argument at the end mostly disappears.
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CLAUSE REFERENCES
JCT Standard Building Contract with Quantities 2016: cl. 2.30 (practical completion and certificates, including the cl. 2.40 and 3.23 documents precondition and the deeming of the certified date); cl. 2.31 (Non-Completion Certificates). The JCT 2024 suite is not covered. · FIDIC Conditions of Contract for Construction 2017 (2nd ed): Sub-Clause 10.1 [Taking Over the Works and Sections]—application not more than 14 days before completion, the Engineer’s 28 days to issue or reject with reasons, the minor outstanding work and defects standard, and deemed completion where the Engineer does neither; Sub-Clause 10.2 [Taking Over Parts]; Sub-Clause 4.4.3 and 4.5 conditions. · Mears Ltd v Costplan Services (South East) Ltd and others [2019] EWCA Civ 502, Coulson LJ — an English Court of Appeal decision on an agreement for lease, persuasive rather than binding in Nigeria, cited for the general propositions on practical completion. · NEC4 is not covered.
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