oct ewj 24 online - Flipbook - Page 93
adoption across the industry following the Supreme
Court’s judgment in MT Hojgaard and subsequent
exclusions under many insurance policies.
correctly engaged is likely to be one element that the
Regulator looks for when determining whether a developer has complied with their regulatory
obligations.
Other areas to flag within the ABCA appointment
such as the net contribution clause, are carried over
from the CIC appointment as is the exclusion of
liability for any direct or indirect loss of profit, loss of
business, or other indirect or consequential losses
arising from a breach of contract.
If you are currently in the process of negotiating
and/or considering using this appointment, please do
get in touch with a member of our team. Additionally, we can provide training on any of the above
points about the Building Safety Act and the new
regulations.
As for the limitation period, this has remained unchanged at 6 years from the earlier of the date of completion of services or termination.
References
1. The Building (Higher-Risk Buildings Procedures)
Regulations 2023
Key takeaways and conclusion
Overall, the new ABCA contracts carries forward
many of the principles from the CIC drafting that was
designed to limit the Approver’s liability. This is driven
in part by an increasingly hardened insurance market, which arguably is the inevitable consequence of
the many claims arising from defective or dangerous
building practices.
2. However, the initial notice will no longer be in effect
after 1 October 2024. For more information around the
transition of ‘Approved Inspectors’ to Registered Building
Control Approvers, please see our previous article: The
Building Safety Act - Are You Ready For 6 April 2024 (and
Beyond)? https://www.stevens-bolton.com/site/insights/articles/the-building-safety-act-are-you-ready-for-6-april-2024
3. Building - Regulator tells teams to down tools on 50
‘higher risk’ schemes due to building safety issues
It is unlikely that there will be much commercial scope
to negotiate such appointments going forward, although the full impact of the new regime is to be seen.
What is important is that parties are clear on their respective obligations under the new regime, how they
are ensuring they comply with these, and can demonstrate to a Regulator they are complying. Contractual
evidence showing competent parties have been
EXPERT WITNESS JOURNAL
4. Copies of the new versions can be located here:
https://abca.uk/resources/
5. MT Højgaard A/S (Respondent) v E.On Climate &
Renewables UK Robin Rigg East Limited and another
[2017] UKSC 59 https://www.supremecourt.uk/cases/uksc2015-0115.html
91
O C TO B E R 2 0 2 4
