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Construction Regulations |31
law |61
The Construction
(Design and Management)
Regulations (Northern Ireland) 2016
Key tips to avoid the
pitfalls of termination
By Anna McClimonds, Solicitor, Cleaver Fulton Rankin’.
The Construction (Design
and Management)
been raised. Namely, a project is
notifiable if the construction work
BY AnnA McCliMonds, soliCitor,
Regulations (Northern is CleAver scheduled Fulton last longer rAnkin than 30
Ireland) 2016 are due working days and have more than
Construction to come into operation contracts 1. 20 Whether workers you simultaneously have a right toor if it
on 1 August often include 2016 and exceeds terminate 500 in person the circumstances days; and
will revoke a termination the 2007
whether the circumstances you are
provision Regulations. allowing parties The relying exemption upon can from be proved. client duties
to terminate a contract for domestic clients has been
in The certain 2016 CDM circumstances
Regulations are 2. removed; Ensure your and right to terminate
by intended giving to protect written persons notice. from The exists Approved at the time Code you of issue Practice the
Alongside health and safety a contractual risks arising is termination replaced with notice straightforward
and the other
right from construction to terminate, work the through guidance. party has not remedied its default.
parties the establishment also have of a a systematic
common framework law for managing right to risk. They 3. For Compliance the purposes with all of requirements the CDM
terminate are intended for to be repudiatory shorter and Regulations, set out in the the contract. following key
breach substantially i.e. simpler a sufficiently in structure questions should be considered
serious than the 2007 breach Regulations of contract and will 4. at Caution the commencement must be taken where of any
or place demonstrating greater obligations an in respect construction there is a two work: stage notice
intention of health and not safety to be on bound those for
by whom the a contract. project is carried out and
also The their 2013 design High Court and construction case of
Vivergo team. Fuels Ltd v Redhall Engineering
Solutions Ltd [2013] EWHC 4030
(TCC) The key highlights changes the problems a
party implemented can face when by exercising the 2016
its CDM right to Regulations terminate. In particular, are:
it deals with the situation where
another The Regulations party challenges will apply the validity to all
procedure to ensure the notices
Do are the connected works in fall both within content and the
definition time. of “construction
work”?
5. The notice must be clear and
“Construction unambiguous. Consider work” is the broadly
defined following under when Regulation drafting a notice: 2(1) as
“the carrying out of any building,
• civil Title engineering the document or as engineering a notice,
construction although a letter works”, may with suffice specific as a
to every designer and contractor
appointed, or being considered for
appointment;
Ensuring that:
the contractor (if there is only
Pursuant to Regulation 5, where
there is more than one contractor
working on a project at any
one time, or if it is reasonably
foreseeable there will be more
than one, the client is required
of clients a termination of construction notice and projects, claims examples warning notice of such in works certain provided. one) or the principal contractor to appoint in writing as soon as
that whether termination or not a person is itself a is acting circumstances.
draws up a construction phase reasonably practicable, and in any
repudiatory in the course breach of or entitling furtherance them of Who is the “client” and plan before the construction event, before the construction
to a business; terminate the contract and claim • what Specifically are state its duties? in the notice that it
phase begins;
phase begins:
damages.
is intended to be a warning/
A designer with control over
The The CDM basic co-ordinator rule for service role of has “Client” termination is defined notice; as and “any person the principal designer prepares the pre-construction phase as
a been termination removed, notice with is that various all duties for whom a project is carried a health and safety file for the principal designer; and
contractual recast, including requirements client duties must and • out”, Refer with to the Regulation contractual 4 providing clause the
project.
A contractor as principal
be general strictly duties; complied with. As Lord for notice the specific is given under client and duties. mirror These
Taking reasonable steps to ensure contractor.
Hoffman said in Mannai Investments include: the wording of that clause.
that the principal contractor and
Co The Ltd client v Eagle is required Star Assurance to appoint “If the
principal designer comply with Is the project notifiable?
clause a principal had said designer that the as notice well as had Making In terms suitable of interpreting arrangements notices, for against the relevant background • Immaterial errors will be ignored if
to any relevant duties stated in
a principal be on blue contractor paper, it would in any have the managing following a project, principles including laid down the or context known to both
Regulations 11 to 14.
Pursuant the notice to unambiguously Regulation 6, a delivers project
been project no where good serving there a is, notice or it on in
is allocation Vivergo Fuels of sufficient v Redhall Engineering time and parties.
is notifiable the purpose; to and the Executive in
pink
reasonably
paper, however
foreseeable
clear it
that
might Solutions
there resources;
Ltd should be considered:
writing as soon as practicable
have Regulation 8 also provides further
will be,
been
more
that
than
the [party]
one contractor
wanted to
• The notice must be sufficiently before • In the the context construction of clauses phase which
terminate.”
• general health and safety duties
working on the project;
Ensuring
Unilateral
the
notices
above
are
arrangements
to be
clear and unambiguous and leave
begins require if the a warning construction notice followed work
The following points should be interpreted in the same way as and roles.
are maintained and reviewed the receiver in no reasonable
lasts
by
longer
a termination
than 30
notice,
working
the two
days
considered before exercising a right contractual documents. That is, they
The duty to notify a project throughout the project;
doubt as to how and when the
and
notices
has more
must be
than
connected
20 workers
both in
to terminate:
are to be looked at objectively,
now lies with the client and the Providing pre-construction
Does notice a is principal intended to designer operate.
working
content
simultaneously,
and time.
or exceed
threshold for notification has information as soon as practicable
and principal contractor
500 person days.
need to be appointed?
Cleaver Fulton Rankin’s market-leading team of lawyers deliver comprehensive commercial and
practical advice, designed to achieve the most cost efficient result, to a diverse range of corporate
clients. The Construction Team at Cleaver Fulton Rankin specialises in providing advice across the
spectrum of non-contentious matters such as drafting and advising on building contracts, appointments,
bonds, novation agreements and collateral warranties.
If you would like further information or to find out how we can help you please give us a
call on: 028 9024 3141 or visit our website: www.cfrlaw.co.uk