Construction Liability - BIBA calls for change

The difficulty for us is that most professional firms will face PI claims not because

they are bad actors, but because they will be ensnared in the webs of liability that

are created on construction projects every day. We all know the contractual

landscape on projects of any complexity is very often loaded against the team

delivering it, particularly its professionals. Clauses which impose liability absent any

wrongdoing will mean that firms, whose financial exposure to some of these claims

ought to be modest, will be anything but. The joint and several liability principles in

our legal landscapes will exacerbate that too, particularly for liabilities relating to

work undertaken long ago where few firms, if any, will still be trading.

The ‘polluter pays’ principle put forward by Government is fine in a situation where

identifying the ‘polluter’ is clear -cut. In our world, there is too much complexity, there

are too many interfaces, there are too many shades of grey.

Paul : It seems that Craig is rightly highlighting the risk that a professional

consultant’s proximity in contract to a ‘bad actor’ can lead to real and

significant exposure. Alastair, do you agree with that and what’s the solution?

We’re going to see some really egregious cases coming where developers, builders

and professionals have failed, or have cut corners and, as Craig says, those guilty

parties should pay. And the cost to those who have committed the most extreme

offences might be more than money. But putting those to one side, the bill

associated with ‘fixing’ the systemic problems that are industry -wide associated with

fire safety failings will be monumental, far bigger than the entire PI market

combined.

With responsibility for the crisis resting with parties as varied as Government,

regulators, manufacturers, testing houses, construction firms, developers, architects,

construction professionals, building control and the insurance market as a whole,

there are a huge number of parties involved. The ‘crisis’ also manifests itself in many

forms, from properties with defects which are relatively minor, through to whole

blocks which are barely habitable, or outright dangerous.