Eoin O’Cofaigh FRIAI
On Wednesday 13th August the BRegs Blog pulled a report on the RIAI EGM held the previous evening as it was felt that reporting attributed quotations without permission might impact on the openness of future debates at any similar EGM. The BRegs Blog Admin. Team are still considering the issue and whether a ‘Chatham House’ rules report might be better. This is where we report what was said without naming who actually said it. We would like to hear your views on this.
In the meantime the BRegs Blog has received permission from Eoin O’Cofaigh, one of those who spoke at the EGM, to reproduce the address he prepared for the EGM to be published in full. It is noted that as there was a time limit on speakers not all of this address was read out on the night. The BRegs would be happy to consider publishing any other similar remarks from the EGM.
Remarks prepared by Eoin O Cofaigh FRIAI for presentation to the Extraordinary General Meeting of the Royal Institute of the Architects of Ireland, Davenport Hotel, Dublin; on Tuesday 11 August 2014
It is my conscientious belief that S.I.9 is disastrous in terms of the liability for other peoples’ work which it imposes on the Design Certifier and the Assigned Certifier. It must be revoked immediately in the interests of all practising architects. No “re-centering the Profession” or “I can take responsibility for my work” or “This is a meal ticket for architects” can mitigate the liability involved.
To revoke S.I. 9 will enable introduction of a better system for consumers, building owners, and architects alike.
Thank you President.
President, as you know, when you read out the notice of this EGM requisition to Council last June, I was concerned about its timing. I have thought about this since and have come to the conclusion (a) that the timing is fine and (b) that I fully and unreservedly support this motion. We must pass this motion tonight if the profession is to have any hope of changing this law. If this motion is not passed, we can forget about changing this law until the next round of building disasters. By which time, it will be too late, for by then, those of us in this room who are now acting as Design Certifier and Assigned Certifier will have faced many legal proceedings.
In speaking tonight, I emphasize that I speak from personal experience of working with architects, building owners, lawyers and insurance companies on litigation matters affecting architects. I prefer to defend architects but often am called in too late. What I say here is from my personal experience. I am not relying on what others say, even if this is important. I have “read it all” and come to these conclusions, which conclusions however are shared by many more eminent than I.
President, the reason I support this motion is simple. Liability. Nothing else. Liability from start to finish. Liability of both the Design Certifier and of the Assigned Certifier. S.I. 9 makes the Design Certifier and the Assigned Certifier fully liable for the quality of the entire design and the entire construction. This is as it set out to do. This was announced by Minister Hogan when he signed S.I. 80 into law; it was confirmed in writing by Minister Kelly about S.I. 9 two weeks ago; and is what the CIF are saying publicly on the airwaves last week.
I owe it to you, President, and to everybody in this room to explain why I believe that what I believe to be intolerable liability, is in fact that. This speech is the basis of my opposition to S.I. 9. It’s a long one because my reasons are detailed. I wish I were wrong in my opinions. Indeed I hope I am wrong. Otherwise, those who have already acted as DC and AC are already in the deepest trouble.
Now I might also be concerned about workload and fees. Those who take on these roles are set to loose money. The fees offered won’t even pay the PII premiums, let alone give any reward for the extra time and worry. But that’s a second-order issue. I am not interested on negotiations with the Department of Education because I am not taking on those roles. And will those fees really pay you? Really, for the extra time and worry? Is this what we have been led to?
No extra fees, no allure of extra work, no imagining of “being at the centre of things”, can pay you for the liability attaching to the roles of DC and AC.
I decided last March that I am not acting as Design Certifier or Assigned Certifier, because of the liability. This decision, not only endorsed but insisted upon by my fellow architect director, has so far cost us two good clients and is set to cost us more. To be sure, we are devising strategies to continue in practice. But make no mistake, the convictions I express in this paper have cost my firm money and time and are set to so continue. And how I wish I could believe those who say that it’ll all be all right. How I wish I could avoid these conclusions.
The Design Certifier certifies the design and the Assigned Certifier certifies the construction. These must comply in full with every aspect of the building regulations. There is no time limit on the certificate. This certificate is to everybody, about everything, for all time. And if an employee signs the certificates, they are liable in equal measure. This is all as clear as day. Let me explain why.
The Design Certificate
I urge you, listeners and colleagues, to read the Design Certificate words yourself. Do not just trust me or anybody else. Read it and see that the Design Certificate says:
I certify … that the proposed design is in compliance with the requirements of the Second Schedule to the Building Regulations.
Now it’s true that I have shortened the text. I omitted a subsidiary phrase. The full text talks about reasonable skill and care. And so you may say, does not the reference to “having exercised reasonable skill, care and diligence” help you? In my view:- No. The reference to “having exercised reasonable skill, care and diligence” only makes it worse for you. Because, if the design is found not to comply – why then, clearly you did not exercise reasonable skill, care and diligence in preparing the certificate. You are in a double whammy: you erred in the certificate because it’s wrong, and you failed to exercise your promised skill and care.
And if you relied on others’ certificates – why did you, when they were incorrect?
Colleagues, I am telling you, that if I were acting for a plaintiff against you, you would not last five minutes. And top lawyers agree with me.
But, you’ll object, what about the “Undertaking by the Builder”? Doesn’t the builder promise to build per the building regulations?
President, the “Undertaking by the Builder” gives no undertaking that he’ll build per the building regulations. Only that he’ll build per the plans. So the builder is absolved of the statutory duty placed on him in the Building Control Act, that he must build per the building regulations. No wonder the CIF support S.I.9.
The Certificate of Compliance on Completion
My colleagues, please download the text of the Certificate of Compliance on Completion and read it for yourself if you have not already done so.
Take ten minutes to read and think about what it says. I have done this many times starting with the drafts in May 2012, then with S.I. 80 last year, then with draft revisions last November, then with S.I. 9 as we are faced with operating.
The builder certifies that he has built per the plans. The Assigned Certifier “certif[ies], having exercised reasonable skill, care and diligence, that the building or works is in compliance with the Second Schedule to the building regulations.”
That is the sentence, those are the words, which you are signing. Not an opinion. A certificate. Not “substantial compliance” but compliance tout court. There are no let outs: and this is what the Minister intended.
Read the words carefully colleagues, and listen to what they mean, in their ordinary interpretation. The ordinary construction of the words, their simplest obvious meaning, is the correct legal interpretation. The Certifier says he has exercised reasonable skill, care and diligence, and certifies that the works comply. The builder offers no such promise. Only the Assigned Certifier.
If the works do not comply, then prima facie the Certifier did not exercise reasonable skill, care and diligence, for otherwise he would have spotted the infraction which he certified as not existing. So in my book, the Assigned Certifier goes down twice. Once for wrongful certification, and again for failing to exercise reasonable skill and care.
Think about a distressed house buyer; or an unscrupulous developer; or somebody who just wants a few bob; think about a witness for the plaintiff who can read English; and ask yourself – is this liability reasonable?
This is Not On. It all turns on those two pages of the Certificates.
No “Code of Practice” can get you out of this. The Code of Practice is subsidiary to the regulations. As a matter of law, the regulations come first and what’s in them overrides the Code of Practice.
You are certifying that the building as-built complies fully with every aspect of the building regulations. This includes all materials, all workmanship, pyrites, radon, dpcs, all the Part L calculations, all the fire-stopping, the pull strength of all the door closers for Part M, all the safety glass.
As a supplier in a hurry, I will be so happy that the Certifier is certifying my work. I will be so happy about that when I know that if there’s a problem, the Assigned Certifier stands between me and the litigant.
If you want to protect suppliers and subcontractors, I suggest that you accept an appointment as Assigned Certifier and, having done so, you then sign the Certificate of Completion.
The liability in general
Now some of us have been saying this about liability for the past two years. Others in this room have worked hard to try to get us out of that problem. Full credit, President, to those colleagues who have done and argued all they can. I have never criticised my colleagues’ voluntary unpaid efforts on all our behalfs. But this evening is not about my colleagues and all their unpaid work. It’s about a law, which imposes intolerable liability on the Certifier, a law which makes it very difficult not to take that role if we want to continue in practice as architects. Make no mistake President, this issue will not go away until this law is changed, because sooner or later it is going to destroy each and every architect who takes those roles.
President, I have no problem with taking responsibility for my own work. I know we all feel similarly. I have taken responsibility for my work during 33 years as a principal in private practice, and taken my mistakes on the chin. I have also been sued by people out to get me, whether just out of dishonesty or whether it’s to get my P.I.I.. This is and will continue to be Life. And anybody in this room who thinks there are no dishonest clients, no dishonest plaintiffs, that nobody out there is after the architect’s PII – well, anybody who imagines that is, what’s that word I saw in the magazine recently? – delusional.
What Minister Hogan said about S.I. 80
President, I am saying clearly, here and now, that this Law is out to stitch up the Design Certifier and the Assigned Certifier. This is no secret. That’s its whole purpose. Listen, first, to what Minister Hogan said in March 2013 when he launched S.I. 80 of 2013:-
“The new Building Control Regulations are a major step forward and will for the first time give home-owners clarity, traceability and accountability at all stages of the building process.”
In other words, the regulations are about traceability and accountability, not about better building.
What Minister Kelly is saying about the new regulations
Now some people say matters have improved with S.I. 9. Indeed a number of my colleagues, in particular your immediate predecessor, made huge efforts to improve matters on our behalf. But in reality nothing has changed. Listen to what Minister Alan Kelly wrote just two weeks ago. The Minister was asked:-
Given the recent occurrence of pyrite in defective blockwork and numerous high-profile demolitions around the country, will SI.9 bring an end to the issue of defective building materials, or just further distance local authorities from their [market surveillance] responsibilities and place a target on one Certifier’s back?
The Minister answered in writing, and it’s on public record, as follows:-
“While the new regulations do not make explicit reference to Declarations of Performance for construction products, given that the regulations require both the design professional and the assigned certifier to sign statutory declarations (the latter in conjunction with the builder) certifying that the building/works has been designed and constructed in compliance with the requirements of the Building Regulations, Declarations of Performance may be relevant as a means of demonstrating that “proper materials” have been used in accordance with Part D of the Building Regulations”
As a child in Primary School, I learned that you can leave bits between brackets out without affecting the sense of the sentence. Leave out the bit the Minister put between brackets, and you get:-
“the regulations require both the design professional and the assigned certifier to sign statutory declarations certifying that the building/works has been designed and constructed in compliance with the requirements of the Building Regulations”
So the Minister believes that if we act as Design Certifier or Assigned Certifier under S.I. 9, we are signing statutory declarations certifying that the works have been designed and constructed in compliance with the building regulations.
And that this includes Part D and means, all the workmanship and all the materials. So when you acted as Assigned Certifier and there’s a problem with pyrites in the blockwork or fill – this will land on your desk, and the Minister reckons that the Declarations of Performance may be relevant… if you have them, or not.
Or maybe there’s just a problem with flaking paintwork? That’s a Part D issue. You say, colleagues, that it’ll never come to that? Or that it isn’t a Part D issue? Are you sure? Think distressed first-time buyer, a sympathetic judge, and think again.
The Minister reckons he has the Assigned Certifier certifying the materials delivered to the site.
What the CIF are saying about the regulations
And if you think that this is just the politicians, or that the Minister’s reference to “in conjunction with the builder” helps us:- listen to what CIF Director General Tom Parlon said on Louth/Meath local radio on 16th July last. Mr. Parlon was asked:-
“What about the issue of somebody who joins the [CIF] Register, builds a house, maybe it’s full of pyrite or the ceiling falls in, and basically it turns out that even though the builder is on the Register they do a bad job – are there penalties for that individual that they must pay?
Mr. Parlon replied,
“There are penalties already under the new building regulations, everything must be signed off by a competent Assignee, who can only be an architect, a building surveyor or an engineer, and in signing off on behalf of the builder, there are obligations there and they have to stand over those.”
So Mr. Parlon is broadcasting that the Assigned Certifier signs off on behalf of the builder. That it’s the Assigned Certifier who has the responsibility for the finished building. Not them.
So why would the builders not support this law?
In my opinion, the CIF negotiators did a great job for their members. When the pyrites is found in the blocks, Minister Kelly has confirmed that the Assigned Certifier will be responsible.
And fair play also, to the Engineers. The Ancillary Certifier roles are almost scot free of liability. The engineers are happy to act as Ancillary Certifier and have little intention of acting as Design Certifier or Assigned Certifier. No wonder the ACEI and Engineers Ireland also support S.I. 9. Why would they not support it?
What do the lawyers say?
President, lawyers retained by the Institute and others have said a lot of things. We hear repeatedly that “things are no worse than under the old Opinions on Compliance regime”.
But other eminent Senior Counsel and solicitors reject that. While, in Dublin Castle last April 2013, the Institute’s own solicitor said that Opinions on Compliance are the single biggest cause of actions against architects.
In my view, an Opinion is one thing; a Certificate is altogether more certain. The buyer and the Minister want certificates because they sense that certificates are certain.
I know. The insurance companies and their lawyers ask my views. Indeed occasionally I am asked to act for plaintiffs against my colleagues. Which, by the way, I have decided not to do in relation to S.I. 9. But that will not stop others from so acting. And with all sorrow, I tell you that it will be child’s play to sink the Assigned Certifier.
For the ACEI, we saw recently that Mr. David Nolan says “S.I. 9 is better than S.I. 80.” Now to me that sounds like I’m going to be hung, but more gently than before. When I read Minister Kelly and Mr. Parlon, whether S.I. 9 is better than S.I. 80 is of small consolation.
You must remember that Counsel briefed on behalf of the CIF and the Engineers were responding to their instructions. And if the architect is taking the responsibility as Mr. Parlon has confirmed, why wouldn’t the engineers and contractors conclude there’s no problem with S.I. 9?
The best informed and most clearly briefed lawyers say that S.I. 9 is lethal in terms of the liability the certificates impose on the Design and Assigned Certifiers. We have circulated you with the papers in the post. And even if you choose not to believe them, even if you also ignore the Minister and Mr. Parlon, all of whom reckon the Assigned Certifier is liable for the lot; can you really afford to be so reckless and rely on the carefully chosen words of a few?
No President, lawyers may and do have different nuances of opinion. But nobody says the Assigned Certifier is fire-proofed by the get-out words.
S.I. 9 must go because lawyers, who never agree, cannot persuade themselves that the carefully constructed get-out clauses will actually help in the face of a claim.
President, the Institute tells us that we must “make up our own minds” on the liability. Now I do not understand why the Institute cannot publish a consensus view. Or, if the Institute thinks the views in this speech are wrong; if the Institute thinks the liability is OK, or thinks the liability is “worth it” in terms of other gains to the Membership, then why not say so? President I wish I had other views. These views of mine have cost me money on lawyers, hundreds of hours of unpaid time, lost clients, and a whispering campaign against me and my motives. But there it is.
S.I.9 is a certificate to everybody
And to act as Design Certifier or Assigned Certifier, or both; and to sign, first the Undertakings and then the Design and Completion Certificates in S.I. 9 is a certificate, on public record.
Just like with the old Opinions on Compliance, everybody will be able to use them in litigation. I have watched legal actions under the old Opinions being brought against an architect by a building owner; by a tenant; by somebody who bought a building.
Three years ago I tried to help a well-known architect firm defend themselves in an action brought by a man who fell, drunk, at midnight, over a wall which they did not design on a housing development in south County Dublin. It sounds incredible. But it’s true. So what happened? Well, I thought I had shown how they were not at all liable and that the management company who had allowed a fence be trampled down and did nothing about it should have considered their position. But our colleagues’ insurers paid up. Our colleagues paid the excess, they paid in increased premia over the next four years and still counting, and they paid in untold sleepless nights.
Yes, that was under the “Old Opinions on Compliance”. Yes, S.I. 9 is different. S.I.9 is different because it’s worse than the old Opinions on Compliance. It’s not opinions, it’s certificates. Ask Minister Kelly.
S.I.9 is a certificate about everything
I have been asked to defend so many members who have given Opinions on Compliance, who get sued over leaking windows designed by specialist subcontractors; over failure to comply with Part L energy calculations; over houses which fail the air-tightness tests. A few years back I have acted for a Member where his client was prosecuted criminally by Dublin City Council over failure under the old Part M to provide an accessible main entrance to a hotel on the side of a hill. By the way, I got them off. But I wouldn’t be so sure I would have, if they had lodged one of these Certificates of Completion with the building control authority.
S.I. 9 is worse. You will now be giving statutory declarations about pyrite-free aggregate. Ask Minister Kelly.
S.I.9 is a certificate for all time
Now as regards whether these Design and Completion Certificates are for all time:-
There might be some light here. In some circumstances it’s possible to get people off if a claim arises out of circumstances which happened more than six years ago. This isn’t the time for a lecture on the legalities of “Out of Time”. But my instinct is that a certificate can continue to be relied upon longer than an opinion; and anyway, if you want to certify right now on the basis that in 2022 they cannot sue you; well, is that really very sensible?
And by the way, there is no six-year limit on actions arising out of personal injury. Reference the South Dublin case above where my colleagues were sued ten years after the building was finished. So if it’s ten years gone, the thing for the plaintiff will be to look hard at the radon barriers, get the tests done, find elevated radon levels, get a few medical reports and – off with the litigation. Would they succeed? Maybe not. Is it fair? Of course not. Is it honest? Decide yourself. Would the Insurers pay out? Why not, if it were just your policy excess involved. €20,000 to go away and everybody’s happy, except the architect who signed the Certificates and whose PII premium next year will be claw-back time.
Not every litigant is 100% honest
And let us remember that not every litigant is 100% honest.
Which of us, in practice for, say, ten or more years, would say that they never met a client who was less than 100% honest? Now maybe all public sector clients are totally honest and that is truly a good thing. But the rest of us all have met people ready to “have a go”; a client with no money who needs to stop a job to avoid paying a bill; a client who relished litigation as a high-stakes hobby; a client who is being whispered poison by his lawyer. We have, or many of us have, seen slips, trips and falls, either totally manufactured or else exploited dishonestly. Think about the one I mentioned a moment back.
Not only clients. Buyers. Tenants. Lawyers who need work.
S.I. 9 is an Open Door to litigation. This is good news for prosecuting lawyers but disastrous for those of the profession who will face paying out.
Employees, also, are liable
President, in my experience, employees, also, will be sued. This may be a surprise but I speak from appalled personal experience as follows.
Last week President, on my return from holiday, a letter awaited me from a lawyer in Navan. He was, is rather, acting for a plaintiff against six defendants. A housing scheme in Meath or somewhere. The case is one of building defects and, surprise, there’s an architect’s Opinion on Compliance. Of the defendants, one is the architect company; one is a company director, being sued in his personal capacity; and two are the employees of the company who actually signed the Opinions, also being sued personally. I know the firm and the directors, we all do. I do not know the two employees who are their co-defendants.
The lawyer acting for the plaintiff wanted me to retain me as an Expert. I refused. But that will be no help to my colleagues being sued because somebody else will act for the plaintiff, and those two employee defendants may very well yet be “fried”. Actually, to tell the truth I think the employees will probably get off, because the employer firm is still in existence and probably has PII. But I would not like to be in their shoes, and I don’t know whether they have PII themselves.
President, I make the melancholy prediction that employees will be sued under S.I. 9 the same as they are already being sued under the old Opinions on Compliance. If you sign the Certificate, it is you who are signing; and a lawyer “out for blood” will not desist from suing you just because you were acting for a firm. What if your employers are retired? Liquidated? Have no PII?
You understand, President, that this remark is based on correspondence to me last week. I shredded the enquiry. But if you ask me to, I will, in strictest confidence, put you in a position to confirm the truth of what I am saying.
For employees and directors alike, S.I. 9 must be revoked immediately.
Even the largest and most prestigious offices have concerns
President, the principle of “Council confidentiality” means that I will not name Names. But you and I both know that a number of the largest and most prestigious firms are declining to accept appointments under this legislation. They know what this means in terms of lost clients. But anybody here tonight who thinks this is “only a problem for the little people” should think otherwise. Size will not protect you. No matter the size of the firm, large or small, the problems which S.I. 9 causes are similar.
Now maybe it’ll be OK for you if it’s just a 40 square metre house extension with a fantastic client and a brilliant builder and a 10% fee to start off with.
But ask yourself – is that the reality for the majority here tonight?
And I do indeed share the view of some colleagues that it would be lovely not to have anybody else “looking over my shoulder” and if I took all the responsibility. That is indeed a way for me to get more work and to place me back at the centre of the construction industry. Lovely.
But that is wishful thinking. The reality is cold, hard, lawyers, liability, sleepless nights, pyrites, litigation and self-protection.
The likelihood of criminal responsibility
President, one might perhaps say, “Oh, but we are covered by our Professional Indemnity Insurance”. This is not so. Our PI will not cover us in respect of fines we might have to pay or indeed jail sentences we may yet have to serve. How does the possibility of criminal responsibility arise?
S.I. 9 makes it an offence not to respond to a request from a building control authority for information. So when the Assigned Certifier lodges a Certificate of Completion, and the BCA writes back and wants more details about, say, the fire alarm panel, or the test reports on the fire doors, or on the door closer strength, or the concrete blocks, and we don’t have the information; and the contractor is too busy; what happens then? The Assigned Certifier will have failed to respond to a request for information. This looks very much like an offence under the regulations. Such offences are punishable under summary proceedings by a fine or imprisonment; or, on indictment, by jail of up to two years. Is this scaremongering? Well, if there is another disaster, and we are then caught in the crossfire, it will not be scaremongering at all.
I did ask the Institute to look into this at the May Council meeting; and, hoping against hope, perhaps things are not this bad. But I wish I could be sure of as much. Think: building control authority under pressure of time. How might an overworked building control authority put off having to examine a Certificate of Completion? Well, one easy way will be to request additional information from the Assigned Certifier. You say this’ll never happen? Well, do Planning Authorities ever request Further Information as a device to put off a decision? Never?
No Professional Indemnity Insurance policy will pay my fines or do my jail term. Is it really worth the risks? Should we really be supporting S.I. 9 when this is what it puts us to? We must oppose this law now.
We are caught between the client, the contractor and the money
Perhaps the moments coming up to Practical Completion are the worst. Say, the AC lodges the Completion Certificate five weeks beforehand, in good time. But is this really possible? If you, my colleagues, sitting here this evening have a school project to be handed over on Monday 25th August next: have you already gotten the commissioning certs for the lift, fire alarm, emergency lighting, fire doors, closers, fire stopping, gypsum board and the rest? Of course not! We all know how it works!
So what happens when you lodge the Completion Cert and the Building Control Authority refuse to validate it? When they want, as they should want, more detail? The building cannot be opened, occupied or used. Whose fault will it be? Not the contractor’s, he will be finished on time. Not the client’s. It will be your fault because, prima facie, it will appear as if you did not do your job properly and collect all the certificates. So who, other than yourself, will be liable for the delay? Who, other than yourself, can the client blame? So who will pay the Liquidated Damages? Think about it.
Opinion, certificate, statutory declaration, warranty, guarantee?
President, the words opinion, certificate, statutory declaration, warranty and guarantee are all being used here and there. I am not a lawyer. I do not know the differences, if there be any, between a certificate and a warranty, a warranty and a guarantee.
All I know is that, to me, an Opinion is one thing; a Certificate is another, altogether more certain. If you were buying a car, would you prefer to get the dealers’ written Opinion that the car is working properly, or his written Certificate? To the layperson, construction is no different from cars. Of course we know better!!! But who cares what we know? Not the judge.
I’ll let the lawyers argue about whether this is also a statutory declaration, or a warranty, or a guarantee. The buyer and the Minister want certificates because they sense that certificates are certain. That’s enough, and I have a lot of respect for the intelligence of the Minister’s advisors and for the quality of the advice he is being given.
What about mitigation strategies?
Now to be sure there are possible “part-coping strategies” for this. I have already pointed them out to those colleagues working on “implementation”. I do not know whether they are taking those pointers on board. I am not writing those implementation papers myself. I refuse to contribute and lend whatever small prestige I may have, in implementing a system which I believe is a disaster for the profession. But I have, as you know President, and as you have generously thanked me and others for, I have commented in some detail on the “Implementation papers”. And I have never and will never stand in the way of those who wish to implement or in any way delay that work.
The reason I became involved in this review was to see whether the situation was retrievable by way of implementation paperwork. If it were, I would throw myself wholeheartedly into that task. I have concluded that it is not retrievable.
Unfortunately, no strategy can undo the underlying problem – here, that of the AC being shot at from all sides: BCA, contractor, client and specialists, at Practical Completion and beyond.
S.I. 9 exposes the Assigned Certifier intolerably at the time of hand over and the Certificate of Completion and it must be revoked and a better system put in place.
Is this all “Crying Wolf”?
President, some people are saying that this “liability furore” is a case of Crying Wolf, we had the same with Health and Safety, it’ll all blow over, this liability fear is a product of a few fevered imaginations, my own included. I only wish it were so.
This is a case of chalk and cheese. Health and safety is chalk; and S.I.9 is, unfortunately, cheese. When the finished job is handed over accident-free, thankfully the health and safety worries end. No accidents or notifiable events on site; and the PSDP’s worry as regards Safety and Health is over. But with S.I. 9, when the finished job is handed over, the DC and AC’s worries start. When the job is handed over, we are responsible to everybody for everything for all time and we have, as Mr. Parlon says, signed off on the contractor’s behalf.
Professional Indemnity Insurance
As for our Professional Indemnity Insurance protecting us here:- It won’t. It cannot. As regards criminal liability, our insurers cannot Do Time for us in Mountjoy.
Then as regards civil liability, the insurers will pay out – while pocketing our policy excess – on the first claim. But what about the second? And the third? Insurance underwriters are commercial companies with their primary duty to their shareholders. When this problem manifests itself, the Underwriters will walk away, in a manner similar to that over asbestos or pyrites. And the best efforts of RIAI Insurance Services, to whom many of us, including myself, are indebted for years of devoted advice, cannot bring them back. RIAI Insurance Services do not themselves underwrite the insurance and all their skilled hard work will not, that day, be able to help us. And, as we all know, if you don’t have insurance the day the writ arrives in the door – that’s the end of you. You are not covered.
If we act as Design Certifier or Assigned Certifier, we have that liability for the rest of our lives. Whether or not we continue to carry PII. And at what cost? Will your fee for acting as AC cover your PII for the next ten years?
It should also be said clearly that insurers do not defend every claim, even if unfounded. An insurer has a commercial duty to his shareholders to act in the company’s interest and not necessarily in the interests of you, the insured. It may be cheaper to settle a claim than to fight it. Many architects who have been sued know the feeling of being the fall guys and of having to pay out for something not their fault. Now that is another issue – Joint and Several Liability – and time does not permit me to share views on that one. But they do settle and one won’t blame them, whether it’s your fault or not. Witness the drunken man who fell over the wall.
Now President, I know there is work being done on Latent Defects Insurance, LDI. We are indebted to our colleagues Tony Reddy and Arthur Hickey in this regard. They “picked up the ball” thrown in by Michael Collins two years ago and we hope their efforts will bear fruit. The industry needs LDI, even when S.I. 9 is revoked and replaced by a better system. So keep going colleagues. But in the meantime, none of us should rely on our PII to dig us out. We cannot be the insurers of the Irish construction sector.
S.I. 9 must be revoked immediately.
An appeal to those of my colleagues who are not directly involved
Some of us, thankfully, will escape these problems. Work by building control authorities in their own functional areas is exempt. State work on Garda stations, Oireachtas buildings, the Justice Ministry and so on are all exempt from building control regulations. So my colleagues in those areas will not have to sign a Certificate of Compliance on Completion to be available on the public record for all time. And this is as it should be. But I appeal to my colleagues in those areas, and your motives in advocating S.I. 9 are good ones, I appeal to those in central and local government not to advocate that the rest of us, who work for other clients, actually take the responsibility for the builder’s and the engineers’ and specialists’ work. It is not right to ask us to take on unconscionable responsibility which you, happily and rightly, escape. Please do not use S.I.9 as a way of “bringing architecture in from the fringe” because the liability is unbearable for the DC/AC who must insure him- or her- self.
Please ask yourself, what is in the overall profession’s best interest? To elevate the evening’s proceedings for a moment, the principle of moral universality must or should apply. As Noam Chomsky wrote:-
“…if we adopt the principle of universality: if an action is right (or wrong) for others, it is right (or wrong) for us. Those who do not rise to the minimal moral level of applying to themselves the standards they apply to others—more stringent ones, in fact—plainly cannot be taken seriously when they speak of appropriateness of response; or of right and wrong, good and evil.”
If for other reasons you feel you cannot support us in our crisis, please stay silent. Please do not tell us that we, architects in private practice who are doing work larger than house extensions which is not fit out or conservation work, that we must assume responsibility of “re-centering the profession” by taking responsibility and giving certificates for other peoples’ work.
I have no problem taking responsibility for my work. But not for other peoples’ work and not for the builder’s work. I am not willing to indemnify the builder in respect of more or less every mistake he makes, for that is what signing the Certificate of Completion amounts to. Please stop expecting me to do as much.
There is a better system
President, as you know, there is an alternative to this law. There is a clear, simple, better system. Michael Collins and the Change Group have put dozens of hours into developing, first a “Better System of Building Control” and then also, a clear explanation as to why it will be better. Better for the Consumer because more certain of delivering better standards; better for the State because, still at zero cost, it insulates the State better from future claims; better for Architects because it delivers us from intolerable liability. You have been kind enough to thank myself and others for all the work put in since January last. We are almost there, this will be a huge step. But we cannot wait for that Better System. We need, now, to oppose S.I. 9 for the damage it does us.
The profession will not achieve a Better System on its own. But we have allies out there. We have allies in the Consumer Associations who want better consumer protection, the Development agencies who want simpler building and planning legislation, the fire officers and the building control officers who want better enforcement. These groups are not concerned about our profession’s problems and nor should they be. But they do want a better system for their own public-interest reasons. A better system is within reach. You know President, that it is being discussed much in Council.
At the end of the day, all the Minister for the Environment wants is a better system. We can help him get it. And I have every confidence in the ability of his officials to help him. I have the closest family members who have been in the civil service. I know the ethos of service to the public and of implementation of Government policy which drives the officials on. We have allies. S.I. 9 helps nobody except litigants and their paid advisors with “better traceability and accountability”. We need a better system and the Institute’s public endorsement of that need starts tonight.
So what about the “good parts of S.I.9”?
There is talk of keeping “the good parts of S.I. 9”.
But which parts are they? Contractor registration? The statutory registration of contractors and subcontractors is an excellent idea, and we all in this room have been calling for it for years. But S.I. 9 does not regulate for contractor registration. If you want contractor registration, S.I. 9 must change.
Latent Defects Insurance, LDI? Another excellent idea. and we have been calling for it, too, for years. But S.I. 9 does not include for mandatory LDI. If you want LDI, S.I. 9 must change.
Electronic lodgement of documents? Another excellent idea, and presumably the mess those of you currently face in trying to fill out your Commencement Notices and in lodging your certificates will be sorted out sometime.
But do not confuse those desirable features with a proper system of building control. S.I. 9 must be revoked and a better system brought in, and that can include new regulations with compulsory LDI, statutory contractor registration and a system of electronic lodgement devised by people who speak English or – and President you will forgive this from a Gaeilgeoir – even Irish as a first language.
President, I am sorry to have spoken at such length. I wish that I did not consider it necessary. There is no pleasure in having spoken out against this law for the past two years and in receiving more than a few knocks, innuendo and hurtful personal remarks along the way. This law and this position have cost me clients and my own money. But changing this law is so important, and so central to the future, not only prosperity but even I venture to say mental health, of architects, and of those around us here tonight, that it is necessary to speak out clearly and in specific detail. It’s the liability, President. Nothing else.
It is put to me that I and those who think like me are “on the fringe”, we are unrepresentative, that many respected colleagues are implementing this system. President, as Paul Kelly says, “Implementation is not endorsement”. Nobody should confuse these concepts. A profession which suffered in a construction sector where output declined by 85% since 2008 is a starving profession. People need bread.
And neither I nor those who share these views on Council have stood in the way of those who favour implementation; we have never held up an implementation document; we have not voted against spending members’ hard-earned money to pay people to write documents which it was clear the “implementers” would need these past fifteen months and more. But do not ask me to legitimise that work. No, we have never sought to delay the “implementation work” even if we are convinced that implementation is against the Profession’s interests.
This evening’s debate is not a game of fine words, “of moving the Profession from the edge to the centre”. This is about people in this room staying awake at three in the morning and worrying about what they have signed, about what they are being forced to sign, about what the builder is putting across them, about which greedy client or dishonest tenant or building user will think something up to get them and in how many years’ time.
The liability imposed by signing the Design and Completion Certificates in S.I. 9 is to everybody, about everything, for ever, on behalf of the builder, and is equivalent to a Statutory Declaration, and is intolerable for anybody who must insure themselves and their families against the risk; and it’s not just I who say so.
President, this motion must be passed. If we do not pass this motion this evening, S.I. 9 will be with us for years. It will then be too late to rescue the profession. It is time for the Institute to represent us, the architects of Ireland struggling with this infamous law, and in our legitimate interests oppose it as our first priority and have it changed. This is not easy. Especially it is not easy for your good self and for how this impacts on your own priorities as President, your wish to reform the Institute, a wish many of us share. This priority must be more important than any one person or small group of people here this evening and will be a huge step towards restoring the Institute’s reputation with the membership.
Some colleagues are concerned that this motion and even perhaps this speech is some kind of call to ignore the law, some kind of call to civil disobedience or something. That is absurd. I can decide not to assume the responsibilities of acting as DC or AC and demand that the law be changed. That is my right as a citizen of this country which is a democracy, and not a country which forces people to act under unjust laws.
President, colleagues, there are not two, but many, views in the room on this law. And there are likewise many views on the best tactics to be used in opposing it. “Seats at the table” and all that sort of stuff. Well, I put it to you – the “seats at the table” delivered us S.I. 9, and it is high time to try a different strategy. If it’s about defending our own legitimate core interests, our livelihoods, health and families:- may we not say publicly, Stop?
It was a great Englishman, John Maynard Keynes, who, when attacked for changing his mind, replied so memorably:-
When my information changes, I alter my conclusions. What do you do, sir?
Well, it seems to me that for many people in this room, the information around S.I. 9 has become clearer and clearer since 1 March last. It’s time to change your mind.
Tonight and until S.I. 9 is revoked and a better substitute in its place, this priority of protecting us, the practising architects of Ireland, must be our Institute’s first priority and Council must act to reflect that priority.
I support this motion. I thank my colleagues who were brave enough to requisition this General Meeting. We are all in their debt.
Colleagues, thank you for listening to me and for your patience in so doing.
Eoin O Cofaigh
President, the Royal Institute of the Architects of Ireland, 1998-1999
Honorary Member, Bund Deutscher Architekten
Honorary Member, Bund Deutscher Baumeisterer
Honorary Member, Soyuz Architektorov Rossii
Honorary Member, American Institute of Architects
Member, Building Regulations Advisory Body, 1991-1997
Author, “Building Control” in: Construction Projects: Law and Practice: Round Hall, 2007 – date
Architect in private practice, Dublin, 1981 – date