One-off houses and Certificates | Deirdre Ní Fhloinn

Deirdre ni Fhloinn

Deirdre Ní Fhloinn

Deirdre Ní Fhloinn, who has previously written several posts for the BRegs Blog (see below), is a solicitor, PhD candidate and construction law expert. She has written extensively on the lack of adequate consumer protections in our building industry. Last month she launched her own blog, ‘Constituto’, exploring aspects of construction law – it is well worth bookmarking (Link: HERE).

In a recent Constituto post the issue of negligent certification is examined in a recent legal case:  McGee v Alcorn & Friel 2016 | Constituo

Extract:

“The issue of liability for negligent inspection and certification of new houses has been widely debated since the introduction of the Building Control (Amendment) Regulations, 2014.  The potential liability for certifiers gave rise to a good deal of concern before the Regulations were introduced, and for good reason.  There is a substantial risk that a negligent certifier will be held liable for the cost of putting right defects to a house in the event of negligent inspection or certification… This is the issue that was before O’Malley J in the High Court in the February 2016 decision in McGee v Alcorn

A striking feature of this case is that it related to a rural ‘once-off’ house, singled out for exemption for building control by SI 365/2015 and widely welcomed by politicians, particularly in rural areas. The professional involved was held liable for the cost of putting right defects to a house in the event of negligent inspection or certification…

Most people buying a modern house, and most of the lenders to whom they will go for mortgages, will require such certificates and will rely upon them.  Self-certification by a builder does not seem a realistic alternative.  It is simply untenable to suggest that the person who holds himself out as professionally qualified to assess, and in a position to certify, the quality of the house and the workmanship of its construction, should not thereby be required to take care in giving such certification’.”

The extent of professional liability under new BCAR SI.9 procedures is a debate that has been ongoing since 2012. Senior industry and legal figures have confirmed that new Assigned and Design Certifier roles carry very significant new levels of exposure due to lack of clarity under the new system. Design and Assigned Certifiers should not assume that they can rely on ancillary certificates provided by sub-consultants or Ancillary Certifiers in the event of an owner seeking redress for defects  (see link below). Extract from Mark Sanfey July 2015:

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

“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”

Other posts of interest:

Deirdre Ní Fhloinn – BCAR SI.9 – the Legal Environment and Consumer Protection

Deirdre Ní Fhloinn – Will BCAR SI.9 Bring Any Benefit to Consumers?

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

2 thoughts on “One-off houses and Certificates | Deirdre Ní Fhloinn

  1. Michael O'Neill

    Reply to – One-off houses and Certificates | Deirdre Ní Fhloinn

    http://www.bregsforum.com/2016/03/29/one-off-houses-and-certificates-constituo/

    Thanks to Deirdre for posting this.

    I have been warning people of the dangers of this level of liability (not the lack of clarity, the clear extent of liability) for a long time now. I wrote to the Minister in 2013 about the Bill and I have posted several comments in this forum since.

    None of the supposed foresight in the legal profession seems to have landed on this point I make below though.

    If you certify that the works are compliant, the person who supplied the defective element or service or works may have recourse to your certificate as a primary defense, in two ways.

    The initial suit will be brought against the certifier.

    Any subsequent suit to recover moneys brought by what is left of this straw man certifier will founder on the fact that he/she certified these very works. A sort of Catch-22 of Certification.

    So any fond hopes of the successfully sued certifier, or his insurers, recovering money from the actual cause of the defect may be a castle built on sand, their their own Cert or their insured party’s Cert acting as a barrier to a successful outcome.

    There is more to this but I will keep this message simple and to the point in the hope that someone in the RIAI reads it and realizes this matter has not died down.

    This is the calm in the eye of the storm.

    Reply
  2. Michael O'Neill

    The case referred to in Deirdre’s piece is referred to in this article

    http://constituo.ie/2016/03/

    One-off houses and certificates – McGee v Alcorn & Friel 2016
    Posted on March 9, 2016

    As can be seen this is not a matter that directly relates to the BC(A)R debate as it occurred prior to this legislation being enacted.

    But it may point the way towards the likely decision of the courts towards certifiers where the way has been paved for them by BC(A)R.

    Reply

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