The new building safety regime

There will be much to digest even on this aspect, but our first impressions are that:

• Commercial clients wanting to delegate these roles are likely to frame the

contractual obligations in a similar way (i.e. in ‘absolute’ terms). Our usual

response to such obligations would be to try to reduce their onerousness by

limiting them to ‘using reasonable endeavours’ or linking them back to

reasonable skill and care. Whilst those amendments are likely to be

proposed by us and others, it seems likely that they will be strongly

resisted. Care needs to be taken to ensure that however the obligation is

flowed down, it is done in a way which doesn’t prejudice the operation of the

insurance cover. Whilst most G&A clients are unlikely to face clauses which

will create uninsured liabilities, in the early months of the new regime

bedding in, it is prudent to take extra care to avoid inadvertently assuming

materially enhanced obligations and risks.

• On a more positive note, the acknowledgement of the importance of the

client’s role on projects only adds to our arguments (made elsewhere) about

the extent to which the client needs to take more responsibility for matters

such as the risk presented by their supply chain.

• In a similar way to the CDM regulations, there will be a requirement placed on

designers to satisfy themselves that the client is aware of their duties before

they start work.

With the new duties on the client in respect of compliance with regulations and

responsibility for supply chain competence, we’d hope that this will improve the

client’s appreciation of the overall risk embedded within the team they pick. It also

should st rengthen the hand of those concerned about the inequity of the ‘joint and

several’ liability principle. For how long can the bona fide members of the supply

chain continue to underwrite the insolvency risk of others?

Seeing double – CDM confusion

An issue raised by many G&A clients is the potential confusion between the use of

the same duty holder roles under the Building Safety Act and the CDM Regulations,

particularly in relation to the principal contractor and principal designer role. A key