Sarah Fox | Specialist UK construction and contracts lawyer
Although not a legal practitioner in Ireland, a Twitter conversation brought the content of the BCAR Certificates to my attention. Oh my…….
As a plain language advocate, my first thought was the dire state of the drafting. As a speaker at PLAIN the International Conference for Plain Language, which was held in Dublin in September 2015, there were 150 delegates who would have torn these Certificates to shreds!
- companies are sometimes referred to as first person singular (‘I’)
- the use of optional identities is confusing
- the terminology is old-fashioned: assigned by, retained by me, reliant on the foregoing
- the layout positively discourages you from reading it
- the sentences are long and tortuous.
Then I realised that I hadn’t got a clue from reading the Certificates what their purpose was. Now, for me, any legal document must make sense to an innocent bystander with none of the background of the parties. These don’t. Frankly, I wonder whether even the parties really understand what the Certificates are meant to achieve.
The Ancillary Design Certificate is particularly hard to follow. In essence it says:
- We have been appointed to carry out specific design services
- Those services and our design have been supervised by a competent person (why isn’t that person providing a certificate instead?)
- We have exercised reasonable skill, care and diligence (as required by the Regulations) in preparing all documents and complying with the Regulations
- But if the design was done by specialists we have assumed they were competent (and are/not be required to check the designs comply, the designer was competent or that they are also giving a certificate? Is that person providing a certificate too?).
Encouraging Regulatory Compliance?
The ancillary certificates appear to be the brainchild of your Building Control Regulations. In England, we have Building Control Inspectors (public) and Approved Inspectors (private) – in Ireland, you have had a huge cast of certifiers foisted on you.
The normal legal position is that Regulations are statutory and mandatory so the project team must comply with them. It is in their interests to do so as failure will damage their reputation within the industry as well as resulting in claims for compensation. So why do the Regulations impose obligations on so many of the parties involved to certify, confirm or state that they have complied with them? The presumption seems to be that the industry does not want to or will not comply, so they have to promise that they have…
Primarily, failure to comply with statutory regulations creates a right of action (or enforcement) by the relevant Regulator. Is the intention of these Certificates to delegate the enforcement of the Regulations from public to private sector,as well as to transfer (aka dump) risk of compliance?
In addition, most construction contracts and appointments require the provider to comply with all relevant legislative and statutory requirements. Their contract or appointment creates a direct right of action for the other party i.e. the person paying the provider.
A Comfort Blanket for the Masses?
What is the extent of the protection these certificates provide, or are they merely a comfort blanket for the masses (like collateral warranties)?Although the Minister referred to a “rolling set of guarantees… for any issues that might arise” [ref], a contractual right to bring a cause of action for failing to comply with the terms of their contract already provided the security he refers to, without this gargantuan mountain of poorly-worded certificates relating only to the Building Regulations.
Mark Sanfey [link here] has already noted his concern about the additional liability they may impose on professionals and the impact on their Professional Indemnity Insurance.
From my perspective, I can’t see where the line of Certificates ends? These Certificates must create a massive drag on any development, without actually changing any of the legal responsibilities of the project team in any meaningful way. And if the Certificate does result in legal liability, the main asset of a consultant is its Professional Indemnity insurance… which is not referred to in all the Certificates.
Scope for Improvement?
I understand that “it is the recommendation of all four organisations [ACIE EI RIAI SCSI] that the wording and format of this suite of documents are not changed for individual project use.” However, it seems highly irresponsible to sign any of these Certificates UNLESS they are changed.
I consider myself lucky to be stuck with our English Regulations, for once!
About the Author: Sarah Fox is a construction contracts strategist and author of a series of 500-word construction contracts. She wants the industry to adopt contracts that they can read, understand and use, including all Certificates. She uses coaching, talks and workshops to help professionals to write simple contracts and understand complex ones. Her keynote is “Never sign on the dotted line” and you can find out more at www.500words.co.uk.
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