oct ewj 24 online - Flipbook - Page 92
Some things have stayed the same, such as the
employer still having to give the Approver 7 days’ notice of commencement of the works and keeping the
Approver regularly informed of the progress of the
project. However, there are new time sensitive obligations on the employer such as providing the Approver
with all necessary information (including site and
block plans) to enable the initial notice to be submitted
no later than 5 working days before works commence
on site, as required under The Building (Higher-Risk
Buildings Procedures) Regulations 2023.
Instead, the Approver only agrees to take such steps as
are reasonable to be able to confirm that the project
complies with the Building Regulations.
5. Termination
The employer’s rights to termination remain
unchanged from the CIC form. The grounds for
client termination are limited in that they only cover
the following two scenarios:
a) Approver is in material breach (and has failed to
rectify the breach within 28 days of a notice of the
breach); and
If the employer fails with their obligations, the
Approver can be entitled to additional payment. Additionally, non-compliance risks refusal to grant a completion certificate for the works, which is likely to be a
prerequisite for practical completion, insurance cover,
occupation and/or sale of the property. Clients should
ensure they are clear on what they need to provide
and that they are adequately resourced to be able to
do so.
b) Approver becomes Insolvent.
On the other hand, the Approver has enhanced rights
to terminate under the new ABCA form, again reflecting the change in legislation. In addition to the
rights it held under the CIC form, the Approver can
now terminate where:
a) there is a “Force Majeure” or “Relevant Event”;
b) there is a conflict between its obligations under the
appointment and its statutory obligations under the
Building Act 1984 or the Building Safety Act 2022;
3. Rights of third parties
The ABCA appointment contains no provisions for
collateral warranties or third-party rights to purchasers, tenants, funders (or any other third parties).
This reflects the position under the previous CIC Appointment and there are no signs of this changing
much in the future.
c) The Regulator suspends, terminates, or places restrictions on the Approver preventing it from providing the services; and
d) The project constitutes or involves work to a HighRisk Building.
There will be exceptions where Approvers allow
clients to grant warranties and third-party rights. For
those situations, further amendments would be
needed.
6. Limitation Period, Limits of Liability, and
Exclusions
The form retains an overall aggregate financial cap on
the Approver’s liability. Whilst CIC permitted the parties to specify the limit of liability, the ABCA’s form
gives just two options, “the greater of (i) £250,000 or (ii)
ten times the Fee, in the aggregate”. These caps are further
lowered in regard to fire safety claims, which are
limited to the amount, if any, recoverable from the Approver’s professional indemnity insurance at the time
the fire safety claim is notified.
As per the previous CIC Appointment, the ABCA
appointment still does not permit assignment by
either party.
4. Compliance with Building Regulations
The ABCA appointment specifies that the Approver is
not responsible for ensuring that Building Regulations
have been complied with and is not obliged to advise as
to how this can be achieved (the employer presumably
having engaged a design team for this). The Approver
also takes no liability for losses that might arise because
confirmation of compliance has been withheld.
Another new addition to the ABCA appointment is
the exclusion of liability for claims relating to “war, civil
disorder, terrorism, mould, spores, asbestos, pollution and/or
contamination and any fitness for purposes requirement in relation to the Project”. This new insert reflects the new
Mr Matthew Wood
Chartered Building Surveyor
BSc (Hons), MRICS, MCIOB, MEWI, ACIArb
I have completed numerous reports on building matters for Court use, both as Expert and Single Joint
Expert. All my reports are prepared in accordance with CPR part 35 requirements and are well
researched and written, clear and well presented.
Areas of Expert work:
-
Building and workmanship disputes including quantum
-
Failed cavity wall insulation
-
Housing disrepair
-
Building defects and pathology including damp, condensation, mould, structural issues, roofs, walls
& floors.
Contact details:
Tel: 01924 654014
Mobile: 07709066969
-
Building insurance and warranty claims including fire, flood, structural, subsidence etc
-
Professional competence & negligence of Building Surveyors and Architectural Designers
-
Forensic analysis of building surveys/reports
-
Building workmanship and standards
-
Building accessibility
-
Personal injury
-
JCT Contract and Contract Administration (Minor Works and Intermediate Forms)
Email: matthew@ovolobc.com or samantha@ovolobc.com
Website: www.ovolobc.com
Address: The Plex, 15 Margaret Street, Wakefield, WF1 2DQ- work undertaken throughout the UK
EXPERT WITNESS JOURNAL
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