olswang 2nd annual construction law conference

Construction Law Conference 2015: “On Time and Budget” 5 February 2015

www.constructiveblog.com

8.30am Registration and breakfast

9.00 Welcome and introduction - Francis Ho

9.05 Sustainability: The Need for Change - George Adams

9.35 Insurance, Bonds and Guarantees - Francis Ho

10.05 Case Law Update - Louise Forbes

10.35 Coffee Break

10.55 Liquidation Damages - Ben Worthington

11.15 CDM 2015 - Philip White

11.45 Q&A

11.55am Refreshments and Networking

www.constructiveblog.com Construction Law Conference 2015

Agenda

Agenda

Sustainability:

The Need For

Change

George Adams

Energy and Engineering Director SPIE Ltd

Leader CIC Green Panel

Olswang Construction Law Conference 2015

I = P × A × T

Where:

I = Environmental impact

P = Population

A = Affluence

T = Technology

Ehrlich, P.R. & Holden, J.P.

(1974)." American Scientist

62(3): 282–292

SO FAST TO LEARN - SO SLOW TO CHANGE

City Heat island was first investigated and

described by Luke Howard in the 1810s LONDON


"You ask what is our aim? I can answer in one

word: Victory however long and hard the road may

be. For without victory there is no survival.“

Winston Churchill

Average global temperature UP 1 degree C .

USA 5 % world's population - 22 % Global emissions.

15 % Carbon Emissions deforestation/land use change..

Human consumption - outstripping Earths ability by 50%

Heading for 4 to 6 degree C of Global Warming

Investments still hugely related to fossil fuel producing organisations

Existing buildings produce 40% of carbon emissions

Population heading towards 9 billion or more

INVESTING A FRACTION OF GDP INTO GW THAN STERN RECOMMENDED

The new victory:

The journey of

adaption in the face of

inventible Climate

Change


Rank Country TOTAL % of

GDP R&D Ref Year

1 United

States 2.7% 2011

2 China 2.08% 2013

3 Japan 3.67% 2011

4 Germany 2.3% 2011

5 South

Korea 4.36% 2012

6 France 1.9% 2011

7 UK 1.7% 2011

8 India 0.9% 2011

9 Canada 1.8% 2011

10 Russia 1.0% 2011

IN 2007 STERN SAID INVEST 2% OF GDP INTO GW - OR ELSE!!!!!


BEHAVIOUR

U.S. oil imports from

OPEC were at one of

their highest monthly

levels in 2008.

Since then, the

hydraulic fracturing

boom has increased

U.S. oil production

Last November China agreed to “make best

efforts to” have its carbon dioxide emissions peak

around 2030 and to increase the share of non-

fossil fuels in primary energy consumption to

around 20 per cent by 2030.

Last November, President Obama reached a

climate agreement with China where he agreed to

reduce U.S. carbon dioxide emissions by 26 to 28

per cent below the 2005 level in 2025


Tonnes Co Emissions

Per Person Per Year

UK 9.2t Co2

2010

China 4.9t Co2

2010

Reduction 2.0t Co2

2010

80%

• Reduction by 2050 to 2t Co2 Per Person Per Year

• Convergence by 2050 to 1t Co2 Per Person Per Year

It’s a People Problem


THE NEED FOR MASTER PLANNING

• WASTE

Organised Collection and Value

Added Recycling

• AIR QUALITY

Identifying and removing big

polluters

• GREENING CITIES

Identifying and developing areas

for strategic green

• BLUE

Finding ways to get water into

urban areas to work with Green

• ENERGY

Finding efficient sources/

distributions with more local/city

locations

The Value of Actions The Cost of Inactions

Economic

Environment Social Su

sta

ina

ble

• Whole Life Approach

• Reducing Life Cycle Carbon

• Increasing Economic Viability of the Asset

• Targets for Reducing Build and Operating Costs

• Value Sustainability Targets

ADAPTIVE

CITIES

SIG

Mitigation Task

Group

Adaptation

Task Group

Planning Task

Group

Water Task

Group

Environment

for People

Task Group

Materials Task

Group Buildings Task

Group

Energy Task

Group Supply

Energy Task

Group Demand

Low Carbon

Economy Task

Group

Technical and

Method Task

Group

Urban Greening

Task Group

Task Leader

Panel Members Corresponding

Members

Other Contacts

or Contributors

Task Group Planning

Year 1 (June) Year 2 Year 3 (June)

Q

3

Q

4

Q

1

Q

2

Q

3

Q

4

Q

1

Q

2

Q

3

Q

4

Q

1

Q

2

Task 1 Mitigation

Task 2 Adaptation

Task 3 Planning

Task 4 Greening

Task 5 Water

Task 6 Built Environment

Task 7 Materials

Task 8 Building Stock

Task 9 Energy Supply

Task 10 Energy Demand

Task 11 Low Carbon

Task 12 Technology

Services to be Agreed

Activity level 4 4 4 4 4 4 4 4 4 4 4 4

Adaptive

Cities


With temperatures approaching

3°C (5.4°F) in 2050 above the

20th century average, the most

extreme rainfall events are now

20% more intense than before

OUR FUTURE - SOME THOUGHTS

Credit: Ray Kurzweil

http://www.kurzweilai.net/

OUR FUTURE - SOME THOUGHTS

inhabitat.com Olswang Construction Law Conference 2015

Buildings are integrated into the city around

them in a number of ways

technologygreenenergy

Credit: Conservation International

We will have many surprise in this new world


Carbon emissions from earlier decades remain

locked into the system.

This delayed reaction continues to affect

weather patterns and climate stability.

As will the ongoing destruction of the Earth's

rainforests, some of which are transitioning

from carbon sinks to carbon sources.

In 2050 the past still presents a challenge


Economics and society need

to follow a new path

CITIES ARE THE KEY

2.14

In 2013 UK COAL imports were 49 million tonnes, an

increase of 10 per cent on 2012

In 2012 UK imports had risen 38 per cent compared to

2011 (33 million tonnes).

2.13

The UK was the second largest EU hard

COAL producer accounting for 13 per

cent (16 million tonnes) of total EU

production (125 million tonnes).

UK Gov

Digest of United

Kingdom Energy

Statistics

31 July 2014

A new global pact on climate change


Construction Law Conference 2015: Insurance, Bonds and Guarantees 5 February 2015

Francis Ho, Head of Construction [email protected] | +44 20 7067 3505 | @fkyh

http://www.linkedin.com/in/francis

Insurance in 2015

• BIM and professional indemnity insurance

• Level 2 and Level 3

• Role of Information Manager in design

• Cyber liability

• Integrated Project Insurance

• Not yet making waves

• Parkwood Leisure v Laing O’Rourke Wales & West and Hurley Palmer Flatt v

Barclays Bank

• Third Party (Rights Against Insurers) Act 2010 and Insurance Bill


Third Party (Rights Against Insurers) Act 2010

• Coming into force delayed repeatedly but may follow passing of Insurance Bill this

year

• Replaces Third Party (Rights Against Insurers) Act 1930:

• Insolvency

• Allows third party to claim against an insured’s liability insurance

• Transfers insured’s rights to third party

• Disclosure of policy information by insolvency practitioners

• Covers all insurance, including PI, employer’s liability and public liability

• Likely to increase claims by third parties against insurers


Third Party (Rights Against Insurers) Act 2010

• No longer mandatory to sue/arbitrate insured to obtain judgment/settlement (i.e.

no need to restore dissolved companies to register)

• Covers wider range of insolvency situations for individuals, partnerships and

corporations

• Exceptions to insurer defences:

• Non-notification or non-performance by insured

• “Pay first” clauses do not generally apply

• Third party can obtain information about policy from anyone able to provide it.

Information must be provided within 28 days


Insurance Bill

• Insurance historically underpinned by common law and Marine Liability Act 1906

• Governs business insurance; being fast-tracked through Parliament. May be

passed in March 2015

• “Fair presentation of risk” in a way that would be “reasonably clear and accessible

to a prudent insurer” (clause 3)

• Remedies for breach of clause 3 will be “proportionate” and depend on what

insurer would have done differently but if breach was reckless or deliberate,

insurer can avoid contract and keep premium

• Prohibits “basis of contract” clauses (clause 9)


“Fair presentation of risk” (clause 3)

• Disclosure in a manner which would be reasonably clear and accessible to a

prudent insurer

• Every material representation as to a matter of fact is substantially correct, and

every material representation as to a matter of expectation or belief is made in

good faith

Alternatively …

• Disclosure of every material circumstance which the insured knows or ought to

know or disclosure which gives insurer sufficient information to put a prudent

insurer on notice that it needs to make further enquiries


Insured’s knowledge (clause 4)

• Individual will also know what those procuring the insurance policy know

• For insureds which are not individuals, same as above but insured also deemed

to know what senior management knows

• However, insured’s agent no longer under separate obligation to disclose


“Basis of contract” clauses (clause 9)

• Already prohibited in consumer insurance contracts (Consumer Insurance

(Disclosures and Representations) Act 2012)

• Convert statements made in proposal forms or policy documents to warranties

• Allow insurers to avoid liability for claims if there are incorrect statements

(Genesis Housing Association v Liberty Syndicate Management)

• Breach of warranty no longer discharges insurer’s liability from time of breach but

suspends it until remedied (clause 10)


Bonds – Recent trends

• More demand for performance bonds than pre-recession

• A “harder” insurance market?

• Performance bonds more likely to expire at practical completion

• ABI model form of guarantee bond remains the general choice


Common types of bonds

• Construction bonds:

• Performance bonds

• Advance payment bonds

• Retention bonds

• Off-site materials bonds

• Bid bonds

• s.38 and s. 104 bonds

• Conditional or on demand?


Conditional and on demand bonds in the UK market


Usually conditional Usually on demand

Performance bond (real

estate developments)

Retention bond

Advance payment bond

Bid bond

Off-site materials bond

Performance bond

(complex engineering

projects)

How to prevent a call: Conditional bonds

• Surety puts Employer to proof

• Surety’s liabilities same as Contractors so it may be released for:

• Forbearance given by Employer to Contractor

• Material alteration of Construction Contract without Surety’s consent

• Employers should consider “indulgence” clause

• Expiry date or event relating to bond occurs


How to prevent a call: On demand bonds

• Very difficult, even if Contractor can dispute any allegation of breach

• Fraud

• Illegality (usually effective, depending on governing law of country of enforcement)

• Unconscionability (Singapore)

• Court order/injunction to either (i) restrain Employer from making call or (ii) Surety from

making payment upon receipt of Employer’s notice

• Courts reluctant to intervene in contract relations between parties


Drafting and commercial considerations for Employers

• Is insolvency a breach of contract (cf. ABI form)?

• Is bond assignable if underlying contract is assigned (or novated)?

• Does Surety have satisfactory financial covenant?

• Is Surety based in Employer’s home country?

• If bond is to be on demand, is this sufficiently clear in drafting?


Drafting and commercial considerations for Contractors

• What is the cost and has it been priced for?

• If Employer’s main concern is insolvency, will conditional bond suffice?

• Unfair calling insurance and Uniform Rules for Demand Guarantees for on

demand bonds

• Clause in Construction Contract to allow Contractor to recover overpayment

under on demand bond

• Longstop date?

• Risk of “pay or extend” with on demand bonds


Parent company guarantees

• What’s the difference between a parent company guarantee and a performance

bond?

• Should Employer seek both?

• “Substituted performance” clauses – sometimes seen

• Payment guarantees from Employers still unusual in UK market. Escrow

arrangements relatively common


Guarantees – Drafting considerations

• Draft as a deed to avoid questions of consideration and for limitation period

reasons

• Liability limited to that of subsidiary under underlying contract

• Is bond assignable if underlying contract is assigned (or novated)?

• Should be drafted as an indemnity (primary obligation) as well as a guarantee


Construction Law Conference 2015: Case Law Update 5 February 2015

Louise Forbes [email protected] | +44 20 7067 3632 | @forbes_louise

Bristol Groundschool v Intelligent Data Capture & Ors

Implied duty to act in good faith

• There is an implied duty to act in good faith in ‘relational’ contracts

• A relational contract is broadly defined as one in which there is a high degree of

communication, cooperation and predictable performance based on mutual trust

and confidence and involve expectations of loyalty which are not legislated for in

the express terms of the contract but are implied between the parties

• The duty of good faith incorporates a requirement of honesty

• The test for honesty is whether the conduct would be regarded as ‘commercially

unacceptable’ by a reasonable and honest person

Where this might apply

• Any service contract which is more than a ‘one-off’ provision of services

• A contract for the design/manufacture/supply of materials on an on-going basis


Eurocom Limited v Siemens plc

Adjudicator appointment fixing

Facts of the case:

• In August 2012, Eurocom started an adjudication and appointed an adjudicator

(the first adjudicator).

• In November 2013, Eurocom, represented by Knowles, served a notice of

adjudication on Siemens (the second adjudication).

• Knowles applied to RICS for the appointment of an adjudicator and, in answer to

the question “Are there any Adjudicators who would have a conflict of interest in

this case?”, listed 13 individuals who should not be appointed, including the first

adjudicator “who has acted previously”.


• The RICS appointed Tony Bingham as the adjudicator (the second adjudicator),

but did not copy the adjudicator application form to Siemens until January 2014,

at which point Siemens asked Knowles for an explanation regarding the alleged

conflicts of interest. No response was received.

• In May 2014, Eurocom commenced enforcement proceedings and Siemens

resisted on a number of grounds, the most interesting one being that the second

adjudicator’s appointment was invalid because of the information Knowles

provided to RICS in making the application and/or because RICS failed to raise

conflicts of interest with Siemens.


The ruling

• Ramsey J held that the plain and ordinary meaning of the words Knowles used in

the adjudicator application form was that it was advising RICS that the people

named should not be appointed because they had a conflict of interest.

• He said that this statement was false in relation to the first adjudicator and a

number of other potential candidates.

• Ramsey J also said that there was “a very strong prima facie case that [Knowles]

had deliberately or recklessly answered the question” about conflicts of interest

so certain individuals who Knowles “did not want to be appointed” were excluded.

• This was a fraudulent representation to RICS that invalidated the second

adjudicator’s appointment, meaning that he lacked jurisdiction.


Tips for success

Tip 1: the conflicts box is only for genuine conflicts

• Only enter names in the conflicts box if those individuals have a genuine conflict

of interest. Even if you don’t enter any names in the box, in theory you should not

end up with an adjudicator who has a conflict. This is because the adjudicator

approached for the nomination has a duty to disclose any conflicts, and not to

accept the appointment if conflicts exist.

Tip 2: take care if naming individuals you don’t want appointed

• In theory, even after Eurocom v Siemens, there is nothing to stop a referring party

from making representations and enclosing a list of “unsuitable” adjudicators with

the adjudicator application form, however the referring party could simply refuse

to refer the dispute to that individual and just reapply to the ANB. As we learnt

from Lanes v Galliford Try, adjudicator shopping is permitted.


Tip 3: be proactive and suggest suitable candidates

• You could consider putting forward a list of names you considers would be

suitable to be appointed as the adjudicator. Alternatively, the referring party could

state the qualifications of the required adjudicator to narrow down the field (for

example, ask for a legally qualified quantity surveyor).

• However, too much prescription might result in a skewing of the nomination

process.

A useful reminder

• This case is a useful reminder that, while the TCC is an ardent supporter of

adjudication, it will come down hard on parties and their representatives if they

don’t play by the rules of the game.


MT Højgaard v EON Climate Renewables UK Robin Rigg East Limited

Fitness for purpose vs. compliance with specification

• MT Højgaard (‘MTH’) entered into a contract with E.ON, the employer, for the

design, fabrication and installation of the foundations for offshore wind turbine

generators

• The foundations were found to be defective and required remedial work

amounting to €26,500,000


Contract contained the following provisions:

GENERAL OBLIGATIONS (8.1)

The Contractor shall, in accordance with this Agreement, design, manufacture, test,

deliver and install and complete the Works:

i. With due care and diligence expected of appropriately qualified and

experienced designers, engineers and constructors......

ii. So that the Works, when completed, comply with the requirements of the

Agreement...

iii. So that each item of Plant and the Works as a whole shall be fit for its purpose

as determined in accordance with the Specification using Good Industry

Practice...

iv. So that the design of the Works and the Works when completed by

the Contractor shall be wholly in accordance with this Agreement and shall

satisfy any performance specifications or requirements of the Employer as set

out in this Agreement...


EMPLOYER’S REQUIREMENTS (3.2.2)

The design of the foundations shall ensure a lifetime of 20 years in every aspect

without planned replacement...


• MTH had completed the works in accordance with international standard DNV-

OS-J101 (“J101”) and consequently had performed the contract using good

industry practice

• Unfortunately, J101 contained a fundamental error

• The foundations did not therefore meet the absolute specification of a 20 year

lifetime

• The judge ruled that the two obligations were not incompatible, but because MTH

had expressly warranted that the construction be fit for purpose for at least 20

years, they had breached the ‘fitness for purpose’ element of the contract

• The court provided guidance that defects caused by errors in specifications will

not be the contractor’s responsibility unless the contractor expressly guarantees

the construction to be fit for a specific purpose


Tips for success

• Be aware of the nature and extent of your/the contractor’s contractual obligations

• Express inclusion of fit for purpose language trumps industry standard


West v Ian Finlay & Associates

Net Contribution Clauses (‘NCCs’)

• Used in construction contracts to split liability between different members of the

professional team

• Without an NCC the paying party can recoup losses from other members of the

team, but only where there was an existing contractual liability between those

team members and the Employer

• For the professional team they are perceived as a ‘fair’ way of apportioning loss

based on liability between the team for that loss

• For the Employer they create uncertainty surrounding the potential recovery of

losses – if one of the named parties to the NCC becomes insolvent, the Employer

will have to cover that portion of loss themselves


The case

• Consumer contract

• Unfair Terms in Consumer Contracts Regulations 1999 (UTCC) were considered

• Judge ruled that the inclusion of the NCC was fair given that:

• NCCs come as standard in RIBA forms of appointment

• The wording in the contract was very clear and ‘could not have been missed’

• The Wests could have chosen another architect if they were unhappy with the

inclusion of the provision


Tips for success

• If you’re going to accept an NCC clause (and, indeed, if you aren’t!) make sure

you hire a financially sound team

• Be wary of ambiguous wording – if you want to rely on an NCC, make sure the

clause makes it clear with whom liability is shared and on what basis

• The clearer the wording, the more likely the clause is to be valid

• It’s unclear yet whether the courts would take the same view for commercial

projects, but it seems likely


Hurley Palmer Flatt Ltd v Barclays Bank plc

Third party rights – the right to adjudication

• Remember Parkwood?

• The beneficiary of a third party right does not have the right to refer their dispute

to adjudication unless expressly provided for in the underlying contract

• Ramsey J focused on the specific wording in the contract and the underlying

legislation (specifically the Contracts (Rights of Third Parties) Act 1999)

• He also drew and analogy with arbitration-related legislation and said that, if the

contract intends to confer adjudication rights to third parties, the adjudication

clause ought expressly to refer to them


RIBA Short Works Contracts

• The Concise Building Contract (CBC) and the Domestic Building Contract (DBC)

• Offer alternatives to the JCT Minor Works Building Contract (MWBC)

• ‘Not designed to compete with the MWBC’


Features

• Offers wording for sectional completion

• Room for a works programme and a risk register

• Possibility of advanced and milestone payments

• Furnished with collateral warranties and third party rights

• Plain language

• Accessible online

Points to be aware of

• Assignment language refers to ‘burdens’

• CDM Regulations are not explicitly referred to

• LADS only available on the advice of the architect/contract administrator


Points to be aware of

• Assignment language refers to ‘burdens’

• CDM Regulations are not explicitly referred to

• LADS only available on the advice of the architect/contract administrator


Construction Law Conference 2015: Liquidated damages 5 February 2015

Ben Worthington, Senior Associate [email protected] | + 44 20 7067 3541

http://www.linkedin.com/in/francis

Liquidated damages - the basics

• Pre-determined sum payable payable by the defaulting party in the event of a

specified breach of the contract

• Liquidated v unliquidated damages

• Exclusive remedy for the breach: Temloc Ltd v Errill (1987)

• Must be a genuine pre-estimate of loss: Dunlop v New Garage Motor Co (1915)

• Judged at the date of the contract, not the breach

• Court is pre-disposed to uphold liquidated damages provisions


Why use liquidated damages?

• Avoid complexity of establishing claims

• Save time and cost

• Certainty

• Price the risk


Recognising a penalty clause

• Not enough to show that operation of the provision might result in a recovery

greater than the loss suffered: Philips Hong Kong Ltd v AG of Hong Kong (1993)

• Alfred McAlpine Capital Projects v Tilebox Ltd (2005):

• Is the purpose of the clause to intimidate or penalise?

• Is the sum reasonable?

• Is the sum extravagant or unconscionable by comparison with the greatest

loss that might be suffered?


The modern approach

• Talal El Makdessi v Cavendish Square Holdings BV (2013)

• Consider whether the relevant provision is extravagant and unreasonable

• But even if it is, the clause may not be a penalty if there is a commercial

justification

• Court considered whether LDs provision was extravagant and unreasonable but

made clear that this was NOT “determinative as to whether the clauses are penal”

• it was relevant because if the clauses are genuine pre-estimates they can

cannot be penal

• BUT “A commercial justification may mean that a clause which is not a

genuine pre-estimate is not penal.”


Bluewater Energy Services v Mercon (2014)

• sub-contract for the construction of a

tower mooring system in the Caspian

sea

• Bluewater terminated the contract

• claims in respect of payment, unlawful

termination and extensions of time



• Liquidated damages were payable where "Key Personnel" were replaced

without approval

• Mercon argued these were penalties - the purpose was to deter a party

from breaking the contract, not compensate

• Bluewater argued that rates were a genuine pre-estimate of loss based

on the potential disruption to the project caused by changes in Key

Personnel



• Held:

• The liquidated damages provision was enforceable

• Law on penalties is a “clear interference with the freedom to contract”

• The sums agreed by the parties were not unconscionable,

extravagant or exorbitant

• Personnel are central to the successful performance of projects

• The opportunity for Bluewater to approve or disapprove the

replacement of Key Personnel was “an important safeguard for the

proper performance of the Contract”


Unaoil v Leighton Offshore (2014)

• Parties tendering for a project to build an oil pipeline in Iraq

• MoA - Leighton required to pay $40m if it was (i) awarded the contract but

(ii) failed to sub-contract oil pipeline work to Unaoil

• Contract package worth $75m at date of MoA

• MoA later varied – contract package reduced to a minimum of $55m but

liquidated damages remained at $40m


Unaoil v Leighton Offshore (2014)

• Held:

• Not a penalty clause when the MoA was first agreed

• The question of whether the clause was a penalty in this case had to

be judged at the date of the amendment to the MoA

• Once the contract price was reduced, LDs of $40m were "extravagant

and unconscionable with a predominant function of deterrence"

• There was no commercial justification for the provision


Summary

• Courts remain extremely reluctant to interfere

• But will interfere in the right circumstances

• Courts less concerned whether LDs represent a genuine pre-estimate of

loss

• Green flag to include higher rates of liquidated damages?

• Make sure discussions relating to the agreement of the liquidated

damages provision are recorded

• Consider the impact of any amendments to the contract


CDM 2015

Philip White Olswang Construction Law Conference

5 February 2015

Progress on Health & Safety

• Significant culture change

over last 10-15 years

• Long-term downward trend

fatals/major injuries

• Greater focus on health

• Greater ownership by

industry

• More integrated approach

to managing H&S

Challenges for the industry

• Leadership in procurement

• Effective management and co-ordination

• Understanding and delivering a competent workforce

• Two tier industry

• Preventing occupational disease

Challenges for the industry (cont)

• Sufficient focus on major incident potential?

• Designing out problems

• Growth in bureaucracy – needs to be tackled

• Still too much non-value adding activity

• Are all decisions/approaches sensible and proportionate?

Government drivers

• Growth

• Better regulation through:

– simplification

– reducing red

tape/bureaucracy

– focus on risk

– proportionality

– consistency

CDM – policy drivers

• No changes on the

standards to be achieved on

sites

• Those who ‘create’ risk

responsible for ‘managing’ it

• Structural simplification

• EU Directive implementation

• Simplified and targeted

guidance

What CDM 2015 achieves

• Simplified Regulations

• Strengthened client role

• Removal of exemption for domestic clients

• Embedding the co-ordination function within the project team

• Removal of explicit competence requirements

• Greater relevance to small projects

• Applies to all construction projects

CDM 2015 – clients

• Influence performance

through the procurement

process

• selecting and appointing

the right team

• setting the standards

• making the arrangements

• holding Principals to

account

CDM 2015 – Role of Principal Designer

and Principal Contractor

• Building collaboration between the co-ordinators and client

• Improving risk identification, management and control

• Working through the project – sharing and using risk information

• Improving risk management in design and ownership

• Those who create risk ‘manage’ it

• Skills and knowledge will develop over longer term

Dutyholders – Principal Designer

Main duties include:

• plan, manage, monitor and

coordinate the pre-construction

phase

• ensure designers comply with

their duties

• ensure cooperation with client and

others

• support the client

• provide a conduit for information

flow between design and build

teams

Dutyholders – Principal Contractor

PC manages and coordinates

the construction stage of the

project

Additional requirements include:

• liaison with PD, throughout

their appointment

• providing information to PD

relevant to H&S file

• engaging and communicating

with the workforce

CDM 2015 – competence

‘Corporate competence’

• Selection of supply chain

with relevant experience

and organisational

capability – due diligence

• Industry led approach

required – PAS 91

• Need to remove non-value

adding activities

CDM 2015 – where are we now?

• The regulations now signed

by the Minister

• Draft guidance on website

• Work on updating webpages

• Getting ready internally for

coming into force

• Developing proposals for

slimmed down signposting

ACoP

CDM 2015 – where are we now?

(cont)

• Much already familiar

• Compliance

expectations

unchanged

• Continued work on

competence

CDM 2015 – guidance

• Legal commentary (L-Series)

• Duty holder-specific guidance authored by industry – aimed at smaller projects.

• Revised HSE web pages

• Development of template H&S plans – smartphone app?

• Other industry products

Operational priorities

• Main inspection effort smaller projects, refurbishment and asbestos

• Addressing underlying causation

– following incident; and

– where risk not managed

• Challenging senior management – Senior level leadership

• Early engagement on major project

• Engaging and helping small firms:

– Working Well Together events

– simplified guidance

Some observations

• No change in enforcement policy – NOT Fee For Intervention driven

• Interesting challenges on enforcement

• Need to understand intervention approach

• Looking at long term change – where we wanted to be 20 years ago on PD

• Construction work very varied – impossible to create perfect fit in all circumstances

In Summary

• Revised CDM Regulations:

– simplification

– improved collaboration

– Responsibilities in supply chain

– focus on real issues

• Opportunity for industry to

demonstrate sensible approach

• Practical & pragmatic approach

required

• All have a role and responsibility –

though reappraisal for some

olswang 2nd annual construction law conference

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