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
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