New Building Control Regs

sydthebeat wrote: »

simple question fash....

what is the statute of limitations under which a certifer may find themselves a defendant in a claim?

I don't entirely understand your question- are you literally asking which section of the statute of limitations it falls under?
The cause of action is negligent misstatement.
The cause of action accrues when all of the elements of the tort are in place.
The breach of duty occurs on writing the statement- there is a question of when the damage occurs- I've never seen a case on long after the fact reliance on a negligent misstatement- but I don't see why not.
Though that would apply equally up an opinion or certificate.

The time runs from the accrual.The time is 6 years.
And an interesting recent case to show the actual contours of the landscape:
http://www.beauchamps.ie/index.php/news/news/supreme_court_clarifies_statute_of_limitations_period_for_financial_loss_claims_based_on_negligence/1130[/quote]

RITwing wrote: »

What form of contract would be deemed in existence between a homeowner and a certifier - (lets say assuming DC+AC same person who was employed by spec developer) ?

There is none.

RITwing wrote: »

Do you believe that the provider of a certificate carrys tends to more risk than the provider of an opinion ?

It depends on what the opinion says. Compared to a full services opinion- a little more but not much.

RITwing wrote: »

Do you beleive that many subsidiary certifying parties will be more or less carefull now with one headline act to attract the inital legal action and which will not be them?

just the same. It's a simple matter to join third parties to proceedings.

From the Beauchamps link

"The Supreme Court found that Mr Gallagher’s case conclusively pointed to the fact that he suffered damage by the very fact of entering into the transaction and purchasing the bond. Accordingly, the cause of action was found to accrue on the date on which Mr Gallagher entered into the contractual relationship with the bank i.e. the date of purchase of the bond."

Now I freely admit I surmise that one day we shall read something like

The Supreme Court found that ( a person who is the 3rd owner of a speculatively built house in an Irish suburb ) case conclusively pointed to the fact that he suffered damage by the very fact of entering into the transaction and purchasing the ( house whilst relying inter alia on the certificate ) . Accordingly, the cause of action was found to accrue on the date on which ( a person who is the 3rd owner of a speculatively built house in an Irish suburb ) ( purchased the house i.e. the date of his purchase of the house ) . Six years clock starts ticking then. Contract law as posited by others here not applying.

Carbonnet

Might be of some interest to you - Legal issues looked at at Building Control Conference - the presentation

http://www.i-b-c-i.ie/docs/conferences/2014/10_Building_Control_(Amendment)_Regulations_2014_Some_Legal_Issues_Barret_Chapman.pdf

Thanks for that. The notes are a little cryptic but one can see Tort , not contract, is the most troublesome area from a certifiers liabilty perspective

.

Notice @ slide 8 that EOC is not alone in deemphasising of the "reasonable skill and care".

The effective wording is "I now certify that the building or works is in compliance with the
Second Schedule to the Building Regulations" - the other words are padding , fluff.

Carbonnet

' .......and relying on the ancillary
certificates scheduled........'

surely the position, competency, professionalism of those issuing the certs will be taken into account in any legal case?

I specifically asked the top table on the day if BER certificates and all supporting documents we're deemed 'ancillary' and yes indeed they were, and the AC would seek redress from those issuing such certs in a situation where they were being challenged.

Carbonnet wrote: »

' .......and relying on the ancillary
certificates scheduled........'

surely the position, competency, professionalism of those issuing the certs will be taken into account in any legal case?

I specifically asked the top table on the day if BER certificates and all supporting documents we're deemed 'ancillary' and yes indeed they were, and the AC would seek redress from those issuing such certs in a situation where they were being challenged.

a little "real world" scenario for you carbonnet

1. the solicitors have been told by the law society to include only Ancillary Certificers cert in conveyancing procedure.

2. should a fault arise only 'assigned certifer' will be included in the "joint and several" lawsuit action. Theirs is the only name included in the conveyancing process.

3. risk of builder being non-insured or liquidated, not carrying PI run off or even PI itself.

4. AC finds themselves "last man standing" and risks being found liable for full costs, even if only deemed to be 1% at fault.

5. insurance companies WILL NOT allow this action to get to court, will settle out of court... and hike AC premiums significantly for the following years, usually until the costs are significantly paid back.

6. should AC NOT AGREE with the insurance companies decision to settle, then they (AC) have to relieve the insurance company of any liability if they want to challange the action in court. This leaves the AC in an impossible situation.

7. AC has now no legal standpoint to "go after" ancillary certifiers as no costs are found against in a court of law.

end result:- AC goes out of business due to crippling PI costs.

Carbonnet wrote: »

the AC would seek redress from those issuing such certs in a situation where they were being challenged.

A fictional scenario to soothe the nerves. But the AC would face a battle on two fronts. S/he would need all energies and resources to fight their own case leaving little over to chase the anciliaries. De facto the AC is alone

sydthebeat wrote: »

4. AC finds themselves "last man standing" and risks being found liable for full costs, even if only deemed to be 1% at fault.

end result:- AC goes out of business due to crippling PI costs.

How does that scenario differ from opinions on compliance where full services are provided?

RITwing wrote: »

Notice @ slide 8 that EOC is not alone in deemphasising of the "reasonable skill and care".

They are highlighting it for legibility- every word is important from a legal perspective.

RITwing wrote: »

The Supreme Court found that ( a person who is the 3rd owner of a speculatively built house in an Irish suburb ) case conclusively pointed to the fact that he suffered damage by the very fact of entering into the transaction and purchasing the ( house whilst relying inter alia on the certificate ) . Accordingly, the cause of action was found to accrue on the date on which ( a person who is the 3rd owner of a speculatively built house in an Irish suburb ) ( purchased the house i.e. the date of his purchase of the house ) . Six years clock starts ticking then.

How does that differ from the treatment of an opinion on compliance? If an opinion on compliance is treated differently- why?

There is a question of when the actual of damage is said to occur for using the opinion/cert. As a general rule the Court does not allow damages for financial loss for the general public. There is a an exception set in Hedley Byrne for special relationships- the decision in Gallagher v ACC is based on this.

fash wrote: »

How does that scenario differ from opinions on compliance where full services are provided?

I was outlining how the scenario would play out, to show the falsehood of thinking ancillary certification was some "backstop" comfort for acs.

But the main difference now is the certainty of the certification that covers every person involved in the build. Have you read the new certs? ?

I think fash is arguing that the SI 9 Certification process simply formalises the de facto reality that the Opinions systems is/was.
The 1% responsible but potentially 100% liable existed before SI 9.
Parties even if not expressly named in a series of SI 9 documents can still be identified and joined in a legal action by a diligent legal team.

Poor Uncle Tom

RITwing wrote: »

I think fash is arguing that the SI 9 Certification process simply formalises the de facto reality that the Opinions systems is/was.
The 1% responsible but potentially 100% liable existed before SI 9.
Parties even if not expressly named in a series of SI 9 documents can still be identified and joined in a legal action by a diligent legal team.

Yes, but it didn't always happen, it could be argued that it was the exception.

Now, what was the exception will be the norm and the 1% responsibility would most likely be from unseen or defective covered works which could happen between inspections or as part of a specialist fit out.

If fash is saying that I admit to seeing - but not accepting - that point (that the SI 9 Certification process simply formalises the de facto reality that the Opinions systems is/was) EOC could have made similar speech in 1991/2 when the Opinions system was introduced. Both systems are founded on falacies

1. without active state enforcement of building controls no nation can expect compliant buildings
2. architects who believe that they see a commercial advantage in this situation are fools. They do not have the power or influence over the human nature of all other parties to a design and construction procees to redress fallacy no 1. In that sense alone fash is right - no change here.

Architects must not agitate about how bad SI 9 is for them.

But how bad it is for everybody who may have cause to use a building in Ireland.

.

Poor Uncle Tom wrote: »

Now, what was the exception will be the norm and the 1% responsibility would most likely be from unseen or defective covered works which could happen between inspections or as part of a specialist fit out.

Agreed. Which is why I think the PI industry will collapse SI 9. It would be better for architects to take the lead and collapse it first.

RITwing wrote: »

I think fash is arguing that the SI 9 Certification process simply formalises the de facto reality that the Opinions systems is/was.
The 1% responsible but potentially 100% liable existed before SI 9.
Parties even if not expressly named in a series of SI 9 documents can still be identified and joined in a legal action by a diligent legal team.

thats fair enough, but "joint and several liability" is not limited to construction certification. It was there before SI 9 and will be there after SI 9.

The main difference between the 'opinion' versus the 'certification' is the absoluteness plus the fact that now the AC takes responsibility for the "reasonable skill, care and diligence of others"

I dont accept that this impossible 'certainty' existed before SI 9, and i feel that its another crux on which it will fail.

Carbonnet

sydthebeat wrote: »

I was outlining how the scenario would play out, to show the falsehood of thinking ancillary certification was some "backstop" comfort for acs.

But the main difference now is the certainty of the certification that covers every person involved in the build. Have you read the new certs? ?

Take fire stopping on the infamous 'Hall' - to rectify the mess new fire stops were to be installed in accordance with regulations, the manufacturer specified would not stand over their system unless it was carried out by their approved installers under the manufacturers inspection (Continuous) - they then issued an 'Ancillary Cert' - Is the AC responsible if there is a failure?

I'd say not, the responsibility would find it's way back to the manufacturer and his PI would be called upon - most reputable manufacturers of building materials have been around for a long time, they are not going to disappear to avoid liabilities.

I don't know how many readers will remember Esther Rantzen , BBC late 70's consumer show That's Life. Back then if one bought a defective TV , washing machine , lawn mower etc consumer law was so poor that shopkeepers could and did refer purchasers onto the manfucturer of the goods in question. Thanks to the efforts of ER and others like her we today have better protections in place for the retail shopper. Today the shop takes back the defective item from the customer , what happens after that does not concern him/her it is between the retailer and supplier/ manufacturer to resolve.

A similar principle pertainss now with SI 9. The consumer sues the architect .
For everything and anything.
End of story.

Especially if the architect is too vitiated to take the matter up afterwards with the fire stopper.
Or BER Assessor.
Or pyritic block supplier.
Or radon man.
Or solar panel man.
Or the roofer who used galv nails not copper as specified .
Or the German suplier of triple glazing panels which fog up.

Who should care for the architect in all this . No one particularly. Who should care that the architect cannot be this all catching buffer between you and the construction industry ? Everyone.
.

Carbonnet wrote: »

Take fire stopping on the infamous 'Hall' - to rectify the mess new fire stops were to be installed in accordance with regulations, the manufacturer specified would not stand over their system unless it was carried out by their approved installers under the manufacturers inspection (Continuous) - they then issued an 'Ancillary Cert' - Is the AC responsible if there is a failure?

I'd say not, the responsibility would find it's way back to the manufacturer and his PI would be called upon - most reputable manufacturers of building materials have been around for a long time, they are not going to disappear to avoid liabilities.

this does not deal with the issue of the insurers settling out of court, which in my experience is vastly the norm rather than the exception.

therefore there would be no recourse against the ancillary certifier

Drift

sydthebeat wrote: »

this does not deal with the issue of the insurers settling out of court, which in my experience is vastly the norm rather than the exception.

therefore there would be no recourse against the ancillary certifier

I don't know if this will be the case but one would imagine that a clever insurer would spread the load by suing the Ancillary Certifier's insurance prior to the settlement agreement taking place. In the one or two cases I've seen previously everyone who could possibly be dragged in has been and then when there's no-one left to sue a settlement agreement is made.

I haven't seen too many cases though so this may be an exception.

Drift wrote: »

In the one or two cases I've seen previously everyone who could possibly be dragged in has been and then when there's no-one left to sue a settlement agreement is made.

I haven't seen too many cases though so this may be an exception.

Nope- this is the way it is done and had always been done. Which is why the difference between opinion and certificate is not as strong as some people think.

DOCARCH

fash wrote: »

Which is why the difference between opinion and certificate is not as strong as some people think.

Indeed. One of the discussions at the recent RIAI EGM was that the DoE are going to have to define what to 'certify' actually is/means in relation to the BC(A)R.

On one hand you the AC 'certifying' the works in compliance with the Building Regulations (i.e. to certify = to be certain) and then on the other hand you have the DoE Code of Practice stating that it is accepted that the AC cannot inspect all works to which the Building Regulations apply...is it a Certificate or an Opinion???

fash wrote: »

Nope- this is the way it is done and had always been done. Which is why the difference between opinion and certificate is not as strong as some people think.

It is impossible for you to say this as there has not yet been a case brought against an assigned certifier.

Indeed. I have no legal training and so I ask all to consider for themselves how the liabilites imposed on a certifier under SI9 would withstand this challenge - the 3rd and 4th stages in particular

In European Union law there generally acknowledged to be four stages to a proportionality test, namely

there must be a legitimate aim for a measure
the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect)
the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it
the measure must be reasonable, considering the competing interests of different groups at hand

galwaytt

sydthebeat wrote: »

Have you read the new certs? ?

Actually, I was wondering if, now that we're 6 months in, has anyone actually done one yet ?