Author: Jack Kavanagh, EurIng BE MEngSc FIEI FIAE FIStructE,FICE FConsEI, past president, Engineers Ireland and past president, Association of Consulting Engineers of Ireland
In ‘Building Control Regulations and Ancillary Certificates’ (15 September eJournal), Cormac Bradley presents a sanguine view of the new regulations, S.I. 9/2014. He concludes by urging us to welcome the “prospect of increased exposure”, to “embrace the opportunity” and to be grateful to the DoECLG for granting us the opportunity to “put our house in order”. However, I believe there are robust, rational reasons why engineers should be more circumspect, and I outline below my understanding of, and opinions on, some of those for consideration.
Personal liability
Signing a statutory certificate is a serious business. In agreeing to act as the assigned certifier (AC) (or as design certifier) on a project to facilitate his/her employer, a chartered engineer working for a design consultancy may be accepting personal, enduring legal liability not only for their own work but, to an extent which is as yet unclear, for the design work and the building work of many other parties involved on the project (including off-site construction) over much of which work the AC will have little personal control.
These regulations impose no new statutory duties directly on any designer who does not agree to undertake the new role of AC (or design certifier). However, if the role is to be undertaken, it is the engineer, not his/her employer, who will be the statutory AC. A consulting engineering firm, company or partnership cannot itself enter into a contract with anyone to act as AC (or as design certifier).
The AC must be a natural person who must
inter alia sign the undertaking certificate and the completion certificate with his/her own name, giving his/her own professional registration number. The certificate is written in the first person singular throughout. It does go on to say: “Where the signatory is an employee) on behalf of: ... (company name).”
However, David Nolan SC, whose opinion was sought on this specific formulation, advised: “It may well have been the intention of the drafters of the certificate to give some protection to the named AC, but the manner in which the certificate has been drafted does not give such protection. It simply gives those who may seek legal recourse the option of suing the AC, or his employer, or more likely, both [...]. The fact that [the AC] may be an employee does not obviate or negate or reduce his own personal responsibility.”
So it seems the named AC may at some time in the future be required to bear, on his/her own account, legal liability arising on foot of his/her certification of a building. The Building Control Regulations mean the AC is the readily available first port of call should there be problems with the building; or, to quote solicitor Rory O’Donnell: “The assigned certifier is the one in the lion’s den.” Of course, personal responsibility/liability for our own work is nothing new, and to date it is only in rare circumstances that individual employees have been pursued personally to finality (a factor in that, no doubt, being they normally have few assets). But while personal liability has not arrived with the role of the AC, it appears to have taken on new dimensions.
Even before the point of certification, the triangle of relationships – engineer/employer/’owner’ – is complex and rich in potential for conflict and legal disputation. Owners must certify to the building control authority (BCA) that they have ‘assigned’ a named chartered engineer (if not a registered architect or building surveyor) as AC, and the AC must personally certify s/he has accepted the assignment. So, will the engineer’s employer stay at arm’s length allowing the engineer the freedom of action required to implement whatever s/he must decide is necessary in order to properly carry out the statutory role?
One can easily envisage scenarios arising as the project proceeds where a conscientious AC’s considered view on what is necessary to comply with his/her own undertaking to the BCA (e.g. increased inspection intensity, rejection of work executed, or even refusal to accept as properly completed) may not align with the best interests of the AC’s employer and its own contract with the owner. In the case of conflict of views, the AC is surely not in a position to concede, to the employer or anyone else, on his/her statutory duties (which trump his/her contractual duties). Possibly even more problematic will be the engineer’s position when he/she is a salaried employee of a developer who is both statutory building owner and builder.
If the AC is an owner/director of a consultancy company (or, similarly, a partner or sole trader) s/he will have more control over contractual arrangements but will have identical statutory duties and liabilities.
Insurance
The instinctive reaction of potential ACs who work in a firm of consultant designers is to say: “But I will always be protected by the firm’s professional indemnity insurance (PII).” It is the case that a company’s PII would be expected to cover from year to year such personal liability arising from work carried out as an employee (within the terms of the policy, and up to the limit of cover, as determined by the company from year to year). But will it be there, and will cover be adequate, in the event of a claim arising down the line? (NB: PII cover comes from the policy in force at the time when a claim is made, not the time when the work is executed; thus, a certificate signed this year is not protected by this year’s policy against a claim made in future years but by the terms of whatever policy may be in force at the time when a claim is made.)
Firstly, should there be mounting consultants’ claims in relation to AC certification, insurers may start to limit or even exclude cover for AC certification in a few years time. Insurance representatives have repeatedly pointed out that PII is not designed as a proxy for latent damage insurance and that insurers follow the market but only until such time as experience indicates a review of their product is necessary from the insurer’s point of view.
Many expect that, should that happen, the DoECLG would have to agree to review the wording of the certificates so as to ensure PII would remain reasonably available; however, experience indicates that such reviews come about only by way of extreme political necessity (although hopefully it would become such a necessity if the role of AC became uninsurable). However, certificates cannot be amended retrospectively so those signed between now and then will remain on record and their signers exposed and uninsured into the future.
Or what if an employee who has signed certificates wishes to move between employers? Although generally in his interests to do so, the current employer may not keep an ex-employee covered for certificates signed during his/her employment (and potential new employers will not cover that risk). In that case, the employee is not insured for old AC certification (unless s/he takes out an individual policy). Or, of course, one’s current employer may at any time close its doors or change its business arrangements (e.g. changing to a different insurer with inferior cover) and insurance cover for all activities of the company and its employees ceases or alters as the case may be. The prospect of retirement in due course, uninsured and with continuing liability for past certification, could be a particular concern.
But what does a certificate say? To what is the engineer putting his/her name to? Unfortunately, that is not at all clear. Looking at the critical concluding statement, clause 8, of the Completion Certificate, it reads: “Based on the above, and relying on the ancillary certificates scheduled, I now certify, having exercised reasonable skill, care and diligence, that the building or works is in compliance with the ...Building Regulations...”
The insertion of the words “having exercised reasonable skill, care and diligence” appears as an attempt at qualification, an attempt to allow for possible error or inaccuracy in certifying that the building is compliant. Dictionary definitions of “certify” offer such as: “attest as certain”, “vouch for”, “give reliable assurance”. So, can such apparent certainty be qualified in the above manner?
SC David Nolan’s view is yes: “...the Final Certificate...is based upon [the AC] exercising reasonable skill, care and diligence at all times...” However, Denis McDonald SC opines explicitly that the insertion of the words “having exercised reasonable skill, care and diligence [does not] in any way cut down or mitigate the use of the words I certify”.
Further vagueness and uncertainty can be said to attach to the words “Based on the above” in clause 8, and to the reference to “relying on the ancillary certificates scheduled”. It seems difficult to argue all this has resulted in anything less than ambiguity and ambivalence. During the consultation process, I was pleased to give some assistance in the consideration and drafting of potentially qualifying clauses but, reading the certificates as finalised and the various legal opinions on them that I have seen, I regret to say I am not confident they will ultimately be deemed effective by the Courts.
Ancillary Certificates
The Building Control Regulations do not prescribe who must provide Ancillary Certificates. When a company provides an ancillary certificate it, unlike the statutory certificates, does not have any prescribed wording, need not be written in the first person singular and can be signed by any person authorised by the company. It is of interest to note, from the point of view of the AC, that,
as pointed out by Eoin O Cofaigh (14 October
eJournal), the advice of the Law Society Conveyancing Committee to solicitors conveying property is that they need not bother collecting ancillary certificates, all they need is the AC’s signed Completion Certificate.
Regarding relying on ancillary certificates, it should be noted that several legal opinions indicate that an AC cannot simply do so without investigation; s/he has a liability in that s/he is certifying that those who provided certificates have themselves exercised skill, care and diligence. If this is to be done in any way other than superficial form-filling, it is surely not a simple task (particularly considering an AC is, more often than not, trying to assess the performance of other experts in areas beyond his own expertise).
We are well aware that one can never be certain about the absolute validity of second-hand information; there must always be some possibility/probability of inaccuracy. (Indeed, engineering is fundamentally about dealing with probabilities, not certainty – see e.g. Eurocode EN 1990 ‘Basis of Structural Design’.) And since there will be a great number of parties from whom an AC must seek to collect ancillary certificates (see e.g. Code of Practice, item 4.2.2), the overall probability of unreliability will almost certainly compound to a significant figure.
Quite apart from statutory considerations, the above is not to say that in the event of a civil dispute arising, ancillary certificates will play no part. From the point of view of anyone providing an ancillary certificate (including those proposed by Engineers Ireland ), it may possibly increase their liability beyond what it would otherwise have been; and any person or company asked to provide ancillary certification would be well advised to give it careful, case-specific consideration before agreeing to do so.
The inspection plan
But why, you may ask, should any defects or other problems arise that will result in the AC being sued if s/he just does the work properly, relying on QA and other systems and, in particular, the inspection plan? Certainly, it is reasonable to argue that, notwithstanding the possibility that there may be more paper-shuffling than anything else, standards of construction should improve, to a greater or lesser extent, as a result of an implemented inspection plan. But it is a racing certainty that buildings will continue to be built with defects.
A basic issue with any inspection regime is that there cannot be an intensity and frequency of inspection that would ensure full compliance, that is, that would lead to certainty there could be no possibility of latent defects. As engineers we know that no inspection regime can be comprehensive. Even industrial production of cars or pharmaceuticals or satellites, with QA systems far, far superior to anything that is practical on a building site, cannot ensure fault-free output.
The Code of Practice deals with intensity and frequency of inspections in section 7 and, quite correctly, it acknowledges this fact, saying that it is “not practical [for certifiers] to examine every item of work to which the requirements of the Building Regulations relate”. This statement, and similar others in the Code, are redolent of realistic phraseology like “substantial compliance” used heretofore in non-statutory certification to cover the same idea.
The Code would appear to be attempting, similarly to clauses on the certificate itself as discussed above, to qualify the certainty otherwise inherent in “I certify”. But, being in a Code of Practice subsidiary to the regulations themselves, one would expect it will succeed only insofar as one or more of the attempted qualifications on the certificate itself are deemed to have succeeded.
Also, if it is eventually judged that such guidance in the Code does validly qualify the certification, an AC, in the event of a defect coming to light later, would have to justify why that particular item of work was left off his inspection regime. (Note that, in the list of factors determining the inspection plan (7.1.1), the relationship between intensity of inspection and available resources, i.e. essentially fees as determined normally by market conditions, is not broached by the Code.)
The Code also says that deciding on appropriate levels of inspection is a matter of professional skill and judgement – in other words, that it is a matter of subjective opinion for ‘inspection staff’. This implies the AC certifies the building on the basis of not only what s/he can know as fact, but of professional opinion – his or her own and that of others. Professional engineers may feel this reality should be obvious to any third parties who rely on his/her certificate, but again we must await a definitive judgement from the Courts.
Refusal to acknowledge that judgement and opinion underlie the AC’s certification was clearly a red-line issue for the DoECLG. Nor was the idea of substantial compliance acceptable. Rather, they said, what were required were professionals’ certificates that “do what they claim to do: they certify compliance”. If the intention had been otherwise, it could easily have been made much clearer than in the current fuzzy wording of certificates. What does seem clear is that the Minister and the public generally believe that what they will be getting is not merely a professional opinion (such as a doctor or lawyer might be expected to provide).
Engineers Ireland
There are many other concerns one could ponder about the Building Control Regulations.
Many of these have been raised by O Cofaigh, a former president of the RIAI. In general, the certificates must be regarded as significantly ambivalent, from the point of view of an AC at least. As such, in my view, they are unjust to both engineer and society. (Note, our Code of Ethics enjoins us as consulting engineers to agree a “clear definition” of what is required of us by our client.) They strive to promise more than can be delivered while the amendments attempt to introduce tests of reasonableness.
It will be the Courts who will decide, well down the road, what may actually be read from an AC’s certificate by those who come to rely on it; that is: is it a professional opinion or a statement of factual certainty from a particular, named, registered professional that the building, both in its design and its construction, is fully (not just substantially) compliant with the building regulations? It is one thing for a limited liability company to await that decision with some equanimity, another for the employee who signed the certificate and who may feel his personal assets and/or peace of mind are at stake.
That the certificates may have been “the best that could be achieved” by the hard work of the representatives of the professions in the DoECLG’s consultation process is, unfortunately, neither here nor there; the judge will not have regard to the drafting history, just the end product.
Certainly, the 2014 regulations are now the law of the land and must be observed. But does that mean Engineers Ireland, as the representative body of professional engineers, should adopt a policy of apparent advocacy on their behalf? I find it disturbing to read apparent assurances being offered to a chartered engineer who may be ‘requested’ by his/her employer to sign these certificates that all will be well so long as they continue to do their own work conscientiously just as before. There appears to me to be no logical basis at this stage for offering such assurances.
Incidentally, apropos protection of consumers/society, for two decades Engineers Ireland made submissions to the DoECLG (the drafting of which I contributed to) about the inadequacy of Irish building control legislation, and asserting,
inter alia, that all aspects of the engineering design of buildings, such as structural design, where public safety/health are at risk should be legally reserved functions to be carried out by or under the direction of chartered engineers only. Ironically, despite their welcome by Engineers Ireland, these regulations introduce no statutory requirement that such engineering design of buildings must be under the control of professional engineers.
Jack Kavanagh, chartered engineer
EurIng, BE, MEngSc, FIEI, FIAE, FIStructE, FICE, FConsEI
Past President, Engineers Ireland
Past President, Association of Consulting Engineers of Ireland