There has been some movement since I posted the last question, it now transpires that there was another defect from a different Contractor that is much bigger than ours and means the dismantling would have had to have happened anyway. So now the £250k bill is dependant on 2 Contractors. How does this get apportioned? Assuming a sensible discussion with the PM is needed.
Also within our Subcontract consequential / indirect loss is capped at £0. I am assuming the dismantling could not be classed as indirect loss?
You need to look at clause 83.1 and 83.2 which covers Indemnities. As far as you are concerned, the other Defect is the Employer’s risk, but they have presumably passed it on in the same manner under the contract with the other Contractor.
If the amount of work to dismantle and re-assemble for the other contractor (if your Defect did not exist) would be exactly the same as for your Defect (if the other contractor’s Defect did not exist), then liability would be split 50/50 … easy !
However, the real world is not like that, so split the common elements of dismantling & re-assembling 50/50, then each covers their own unique elements. That’s financial liability as if you were paying a third party to do it, but I assume between the two contractors you have two figure out who is going to do what.
Finally, you are correct: this is NOT indirect/consequential loss.