Difficult Senior Council Opinions: BC(A)R SI.9
by Bregs Blog admin team
During last week’s Irish Building Control Institute conference in Sligo, Barrett Chapman, Partner, Contruction Department, McCann Fitzgerald Solicitors, made a presentation on the alarming legal and liability implications for professionals in Building Control (Amendment) Regulation (SI.9 of 2014). This presentation reiterated a similar talk he made at a recent CPD in Dun Laoghaire on 26th March 2014 (see previous post here).
Barrett Chapman’s advice on BC(A)R SI.9 from 26th March CPD gives a very bleak appraisal of the 2013 certificate wording amendments…Despite additions of ‘based on the above’ and ‘using reasonable skill care & diligence’, the “absolute wording is still there“……Regarding advice to assigned certifiers in light of his presentation, whether to act in the new certifier roles, Barrett offered this advice: ”Don’t“. This analysis of the wording of the certificates is shared by other eminent lawyers, notably Fiona Forde BL and Denis McDonald SC.
Kevin Sheridan, senior representative of the Building Surveyor’s representative body (SCSI) disputed the presentation in the subsequent debate saying that the representative bodies for architects and engineers (RIAI and ACEI respectively) had recent opinions from senior counsel that concluded the opposite. Neither the RIAI nor the ACEI have published any such opinions since the SI.9 came into effect. It appears that the ACEI have not published an updated opinion since September 2013.
In summary one thing is very clear- the liabilities are at best very uncertain and may well be uninsurable within a short time for professionals undertaking the new certifier roles under BC(A)R SI.9. This is a law where one person’s share of responsibility is disproportionate- one person cannot carry the liability for an entire team of designers, builder, subcontractors and suppliers- which is what is now required by the law.
For clarity we re-attach previously circulated senior council advice. Opinions commissioned by the RIAI (Ralston opinion with Hayes letter), ACEI (Nolan opinion), and consolidated McDonald opinion (commissioned by 7 past presidents of the RIAI). The most recent is the consolidated opinion from McDonald. We believe a revised and updated Ralston opinion is due to be released shortly also form the RIAI. In reverse chronological order:
Consolidated McDonald Opinion (7 Past presidents RIAI)
Gavin Ralston SC Advice (RIAI)
Hayes Solicitors Statement:
ACEI senior council opinion (ACEI)