Professional Liability and BC(A)R SI.9 | Mark Sanfey SC

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Mark Sanfey SC

“Phil Hogan promised a rolling set of guarantees…. this is little comfort to the professionals involved and has implications for their PI Insurance” – Mark Sanfey SC

BRegs Blog have posted legal opinions on the Building Control (Amendment) Regulations before (see links below) but this paper from one of Ireland’s most senior construction barristers sets out the implications for professionals in unequivocal terms.

Mark Sanfey SC is the Chairman of the Construction Bar Association in Ireland. He presented this paper at its conference in July 2015. For the full paper see link here

A number of key points from his talk:

  • WHY IS A CERTIFICATE DIFFERENT TO AN OPINION ON COMPLIANCE?

“To certify means that I have checked and it’s absolutely true and I stand over it. There are different schools of thought on these certificates – are they qualified by professional “due skill and care” or are they a warranty?”

  • WHY DOES THE PROFESSIONAL CERTIFIER CARRY MORE LIABILITY THAN THE BUILDER?

“A builder only has to build what is presented to him, that’s the extent if his liability”

  • ARE THERE NEW LIABILITIES FOR A PROFESSIONAL SIGNING CERTIFICATES?

“Under these certificates the certifier has a liability in tort to the world at large, this is a new development above the traditional situation. The terms of the certificates may open an exposure for certification even where there is no negligence by the certifier. The courts will look at the wording of the certificates only and will not look behind them to the Department [of the Environment] publications”

“You could argue whether the Ancillary Certifier has this NEW liability or not but the Design Certificate is much more clear cut- the person who signs is primarily Iiable without safeguards. There is a significant risk that the Design Certifier assumes responsibility for the due skill and care of others “

  • WHAT ARE THE IMPLICATIONS OF THIS? 

“The most pressing problem is PI Insurance. Most negligence claims can be answered by showing due skill and care. This is different [under the statutory certificates] and the liability is above a standard of due skill and care because the Certifier is relying on others. The person with PI Insurance will be the target, he may not be to blame but if he has PI he often picks up the bill”

  • WHAT VALUE ARE THE ANCILLARY CERTIFICATES?

“Solicitors will rely on the statutory certificates [Design Certificate and Completion Certificate] only, not the Ancillary Certificates”

  • WHAT HAPPENS IN A DISPUTE?

“There are civil liability/ multi party problems. A certifier may be required to resolve a dispute in arbitration [with the owner] but cannot bring in a third party [Ancillary Certifier] to the arbitration; [the certifier] would have to instigate legal proceedings separately [against the Ancillaries]”

  • WHAT’S THE PROBLEM WITH SI9?

“The system is not clear so you can’t define the risks and that makes it difficult to get insurance. That’s the biggest evil”

With thanks to Orla Hegarty MRIAI Professional Practice Course Director in UCD for some notes on the event that were used, including some direct quotations, in this blog post.

PDF: “BC(A)R 2014 Implications for Dispute Resolution, Mark Sanfey S.C. July 2015

Other posts of interest:

“The Assigned Certifier is the one in the lion’s den” Rory O’Donnell, solicitor

Summary of Legal Posts – BC(A)R SI.9

Friday Follow | Eoin O’Cofaigh FRIAI

S.I. 9 and Insurance Claims: Deirdre Lennon MRIAI 

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