Tom Parlon – The Last Word

Parlon

 Builder’s Liability under S.I. 9 – Part 6: The Final Word

This week as part of the Construction Annual Holidays 2014 (aka the Builders’ Holidays) we published a series of five posts on the liability of builders under the Building Control (Amendment) Regulations S.I. 9. For this the final and sixth post we thought we would leave the last word to the Director General of the Construction Industry Federation (CIF), Tom Parlon. Parlon is a former Minister of State at the Department of Finance who had a special responsibility for the Office of Public Works.

On Wednesday 16th July 2014 Parlon was interviewed by Michael Reade on the Louth/Meath local radio station in relation to the CIF’s new Construction Industry Register Ireland (CIRI). The LMfm interview podcast may be accessed here (Link) and runs from the 34 to 45 minute points.

At the 40 minute point the presenter asked,

“What about the issue of somebody who joins the Register [CIRI], builds a house, maybe it’s full of pyrite or the ceiling falls in, and basically it turns out that even though the builder is on the Register he, she or they do a bad job – are there penalties for that individual that they must pay or that they must suffer for effectively, incompetence?

Tom Parlon replied,

“There are penalties already under the new building regulations, everything must be signed off by a competent Assignee, who can only be an architect, a building surveyor or an engineer, and in signing off ON BEHALF OF THE BUILDER (our emphasis), there are obligations there and they have to stand over those”

It must be reassuring for all those builders enjoying their annual holidays in the comfort that Parlon has looked after their interests so well by placing the blame and liability for any construction fault away from the builder and firmly onto the Assigned Certifiers.

The first post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 1

The second post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 2

The third post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 3

The fourth post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 4

The fifth post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 5

0 thoughts on “Tom Parlon – The Last Word

  1. Michael O'Neill

    This is the part to which I object strongly.

    Rolling back the clock a little, lets review the system that was in place.

    The Architects Opinion was backed up by Schedule A Confirmations.

    Other Designers stood over their parts of the Design of the relevant Building or Works – Mechanical, Electrical and Structural Engineers, Fire Safety Engineers, Civil Engineers etc.

    The Contractor’s Cert, Sub-Contractors Certs and Specialist Suppliers offered assurances in relation to those parts of the Built Work they Built or Supplied.

    This provided a continuous patchwork of assurances where each person or entity stood over their own work and where faults in the manufacture of items off or on site which were not readily apparent were not imposed on the issuing professional as a Criminal liability.

    The current law imposes this as a form of Strict Liability on the Assigned Certifier and I believe this is an unfair transfer of liability, just as (for the record) I believe the transfer of risk in the GCCC contracts is unfair to the Contractor (the number of unfinished projects in the Public Sector in 2012-2013 bear out how well this works in a recession).

    So we can see that from the GCCC Contract to the New Building Regulations, there is a concentration of risk and liability away from clients and government authorities to individuals in the private sector.

    I don’t know if many people reading this will remember the old Building Bye Law Officers pre-1990 or thereabouts.

    They were holy terrors. If a bungalow was built a foot out of permission on an acre site it might be rejected.

    I think that is the way the Assigned Certifier will behave – on steroids.

    Unlike some persons with skin in the game, I do not believe that this is a matter that can be dealt with by getting Latent Defects Liability Cover. That is Naive In The Extreme. Such cover cannot protect you from a criminal charge.

    Notwithstanding that, I think even Non-Negligence cover would NOT be sufficient to address all the potential claims that could arise. With such onerous legal liability we might even have to contemplate Consequential Damage cover. And that is an open ended cheque if ever there was one.

    Protection is also not afforded by approaching this from the point of view of a Limited Liability Company of whatever flavour. The Liability in such instances refers to the Members liability in monetary terms being limited re claims against the Company. Again, this does not protect Directors from claims of a Criminal Nature.

    (sorry for all the Caps but I’ve found that it helps some people understand important points)

    So the foreseeable consequences include:

    Every scheme will see a minimum 20% overhead in fees arising to cover the added work and insurance cover, because if this quantum isn’t seen to be paid the court will know the assigned and design certifiers were not properly funded by the clients.

    This will open the way for criminals to abuse this system just as they have the previous system, but putting this form of Strict Liability in place will allow people who have no skin in the game – the so called “lawmakers” – our politicians to point at the legislation and say – “see, you’re safe now”.

    [BTW this draconian regulation is worse than giving Gardai extra powers of detention and arrest when the existing powers were not being used properly because at least that Gardai are doing something.

    The local authorities in this country hide behind the get out clause of minimum inspections of commencements, sometimes as low as 10%!

    This is a total and utter disgrace and don’t bother me about them not having enough money to do it – that is the primary disgrace caused by these “lawmakers” in Central Government spending the money on the 90+K per year “advisors” and their fat expenses and pension “entitlements”.]

    So, to continue we can expect – as a minimum – the following precautionary measures to be adopted to weed out bad workmanship.

    Only accepting appointments from Clients who will pay proper fees for the service provided.

    Only using Main Contractors, Suppliers and Sub-Contractors who are Registered and with a proven track record of good works.

    Conducting detailed analyses of the tax history and current financial standing of every firm involved in the production of the building.

    Conducting detailed analyses of every person working on the building site in terms of the competence to carry out their work – and we are looking at using qualified tradesmen, experienced site operatives, adequate numbers of Health and Safety officers, spot checks on training – and all of this to be recorded, photographed and confirmed in writing.

    Photo ID and badges for everyone working on site and no unaccompanied site visits by ANYONE, including members of the local authority, suited VIPS, ‘lawmakers’ – all will have to be chaperoned and directed.

    Factory Mill and Test Certificates from every supplier with an investigation of failure rates of their components. Components are a particular bugbear of mine, since there is no way the assigned Certifier can monitor their off-site production

    Check testing everything that comes to site, never mind coring for structural concrete every time something is erected.

    So if the Market is to provide, the market will provide – at a price. Don’t expect a Rolls Royce service for the price of a Mini. You will get what you may for. Where you are getting this low price, you can expect the certs not to be worth the paper they are written on.

    Just my initial thoughts on the matter. I’m sure others will think of more ways to better deliver the service the Assigned Certifier must Provide. This is only the start.

    Reply
  2. Michael O'Neill

    This is the part to which I object strongly.

    Rolling back the clock a little, lets review the system that was in place.

    The Architects Opinion was backed up by Schedule A Confirmations.

    Other Designers stood over their parts of the Design of the relevant Building or Works – Mechanical, Electrical and Structural Engineers, Fire Safety Engineers, Civil Engineers etc.

    The Contractor’s Cert, Sub-Contractors Certs and Specialist Suppliers offered assurances in relation to those parts of the Built Work they Built or Supplied.

    This provided a continuous patchwork of assurances where each person or entity stood over their own work and where faults in the manufacture of items off or on site which were not readily apparent were not imposed on the issuing professional as a Criminal liability.

    The current law imposes this as a form of Strict Liability on the Assigned Certifier and I believe this is an unfair transfer of liability, just as (for the record) I believe the transfer of risk in the GCCC contracts is unfair to the Contractor (the number of unfinished projects in the Public Sector in 2012-2013 bear out how well this works in a recession).

    So we can see that from the GCCC Contract to the New Building Regulations, there is a concentration of risk and liability away from clients and government authorities to individuals in the private sector.

    I don’t know if many people reading this will remember the old Building Bye Law Officers pre-1990 or thereabouts.

    They were holy terrors. If a bungalow was built a foot out of permission on an acre site it might be rejected.

    I think that is the way the Assigned Certifier will behave – on steroids.

    Unlike some persons with skin in the game, I do not believe that this is a matter that can be dealt with by getting Latent Defects Liability Cover. That is Naive In The Extreme. Such cover cannot protect you from a criminal charge.

    Notwithstanding that, I think even Non-Negligence cover would NOT be sufficient to address all the potential claims that could arise. With such onerous legal liability we might even have to contemplate Consequential Damage cover. And that is an open ended cheque if ever there was one.

    Protection is also not afforded by approaching this from the point of view of a Limited Liability Company of whatever flavour. The Liability in such instances refers to the Members liability in monetary terms being limited re claims against the Company. Again, this does not protect Directors from claims of a Criminal Nature.

    (sorry for all the Caps but I’ve found that it helps some people understand important points)

    So the foreseeable consequences include:

    Every scheme will see a minimum 20% overhead in fees arising to cover the added work and insurance cover, because if this quantum isn’t seen to be paid the court will know the assigned and design certifiers were not properly funded by the clients.

    This will open the way for criminals to abuse this system just as they have the previous system, but putting this form of Strict Liability in place will allow people who have no skin in the game – the so called “lawmakers” – our politicians to point at the legislation and say – “see, you’re safe now”.

    [BTW this draconian regulation is worse than giving Gardai extra powers of detention and arrest when the existing powers were not being used properly because at least that Gardai are doing something.

    The local authorities in this country hide behind the get out clause of minimum inspections of commencements, sometimes as low as 10%!

    This is a total and utter disgrace and don’t bother me about them not having enough money to do it – that is the primary disgrace caused by these “lawmakers” in Central Government spending the money on the 90+K per year “advisors” and their fat expenses and pension “entitlements”.]

    So, to continue we can expect – as a minimum – the following precautionary measures to be adopted to weed out bad workmanship.

    Only accepting appointments from Clients who will pay proper fees for the service provided.

    Only using Main Contractors, Suppliers and Sub-Contractors who are Registered and with a proven track record of good works.

    Conducting detailed analyses of the tax history and current financial standing of every firm involved in the production of the building.

    Conducting detailed analyses of every person working on the building site in terms of the competence to carry out their work – and we are looking at using qualified tradesmen, experienced site operatives, adequate numbers of Health and Safety officers, spot checks on training – and all of this to be recorded, photographed and confirmed in writing.

    Photo ID and badges for everyone working on site and no unaccompanied site visits by ANYONE, including members of the local authority, suited VIPS, ‘lawmakers’ – all will have to be chaperoned and directed.

    Factory Mill and Test Certificates from every supplier with an investigation of failure rates of their components. Components are a particular bugbear of mine, since there is no way the assigned Certifier can monitor their off-site production

    Check testing everything that comes to site, never mind coring for structural concrete every time something is erected.

    So if the Market is to provide, the market will provide – at a price. Don’t expect a Rolls Royce service for the price of a Mini. You will get what you may for. Where you are getting this low price, you can expect the certs not to be worth the paper they are written on.

    Just my initial thoughts on the matter. I’m sure others will think of more ways to better deliver the service the Assigned Certifier must Provide. This is only the start.

    Reply

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