The trusting ordinary folks who place their lives in the expertise of construction professionals are seeking answers in the aftermath of the tragic Grenfell Tower fire that broke out on 14 June 2017 in the 24-storey block of residential flats causing 72 deaths.    major exercises that involved opening up and taking samples for testing have taken place to identify all other social sector buildings clad with the similar Aluminum Composite Materials [ACM] and/or foam polymer insulation materials and/or any defective fire stopping.

This disaster is the deadliest structural fire in the UK since the 1988 Piper Alpha disaster and the worst UK residential fire since WW2 - and has also opened the wider focus on cladding and identified the problem also extends to standard grade high pressure laminate panel materials too, which have been extensively mis-specified or incorrectly supplied.   The full extent of the problem is still being assessed but, so far, there are hundreds of tower blocks that have failed ...

Many of these remaining high-rise residential buildings [HRRBs] are most likely to need to have urgent removal and re-cladding works undertaken.  The removal and replacement of underlying insulation on such buildings will depend on its flammability or whether it is bonded to the outer metal sheet as a composite (sandwich) panel ... and designers will need to be competent to assess and specify the replacement systems - but, more than that, the teams of professionals and contractors will realise that many of the buildings around the UK are high-rise residential tower blocks that will need to remain occupied during the replacement of the external cladding ...urgent interim active fire safety monitoring measures by fire marshals have been put in place to protect the residents who are having to live waiting at considerable risk.

... Art 25(b) RRFSO appears on face value, to place general fire precautions [GFP] within the enforcement remit of HSE ... but taken in conjunction with the 2015 CDM Reg 36 [which replaced the Construction (Health, Safety and Welfare) Regs 1994] - Reg 36 provides that where construction sites are contained within or form part of premises occupied by persons other than those carrying out construction work, or any activity related to this work, in which case it will be the FRS who are the responsible statutory enforcing authority for Regs 30 & 31 (so far as they relate to fire) and Reg 32 ...

2024++ Thoughts and Update ...

The Significance of Fisher v. Bell and Taylor v. Caldwell in Assessing Professional Indemnity Insurance Cover for the Construction Sector: A Legal and Insurance Perspective

I. Introduction

The construction sector operates in a complex legal environment where contractual relationships, competence certifications, and unforeseen events can significantly impact liability and insurance coverage. This paper explores the importance of Fisher v. Bell [1961] 1 QB 394 and Taylor v. Caldwell [1863] EWHC QB J1 in the context of assessing the validity of competence certifications for insurers providing Professional Indemnity Insurance (PII) cover to professionals in the construction industry.

II. Fisher v. Bell: Precision in Contractual Intent

Fisher v. Bell underscores the importance of precision in contractual intent, particularly regarding offers and invitations to treat. In the construction sector, where contractual obligations are paramount, the case serves as a reminder that the validity of contractual relationships hinges on clear and unambiguous terms. Insurers, when assessing PII coverage, should scrutinize the contractual language and ascertain whether the terms of engagement comply with the formal requirements of relevant legislation.

III. Taylor v. Caldwell: Frustration and Unforeseen Events

In Taylor v. Caldwell, the doctrine of frustration is established, recognizing that unforeseen events can render contractual performance impossible. In the construction industry, where projects are susceptible to external factors, insurers must consider the potential frustration of contracts due to events beyond the insured's control. Assessing the validity of competence certifications becomes crucial, as the failure to meet regulatory requirements may lead to unforeseen events impacting the contractual relationship and triggering PII claims.

IV. Insurer's Perspective: Assessing Competence Certifications

Insurers providing PII cover to professionals in the construction sector should meticulously assess the validity of competence certifications. A failure to recognize the legal and regulatory frameworks, as exemplified by Fisher v. Bell and Taylor v. Caldwell, could expose insured professionals to increased liability. Insurers must verify that competence certifications comply with the prevailing legal standards and are not compromised by imperfect licenses or trademarked protection.

V. Engaging Legal Counsel: The Role of King's Counsel Barristers or Solicitor Advocates

In legal cases involving PII claims, especially those related to competence certifications in construction, the engagement of experienced legal professionals is essential. King's Counsel barristers or solicitor advocates bring a wealth of expertise to navigate the complexities of contractual relationships and the legal implications of competence certification. Whether representing the claimant or defendant, these legal experts ensure that the contractual foundation is soundly established or scrutinized for potential compromise, offering invaluable insight into the intricacies of construction law and insurance coverage.

VI. Conclusion

Fisher v. Bell and Taylor v. Caldwell provide critical legal principles that resonate in the construction sector, influencing contractual relationships and the validity of competence certifications. Insurers of PII cover in this industry must be attuned to these precedents, understanding the impact on liability and coverage. Engaging legal counsel, particularly King's Counsel barristers or solicitor advocates, becomes imperative in navigating the legal intricacies surrounding competence certifications, ensuring the contractual relationship is robust and adequately protected against potential pitfalls. In conclusion, a comprehensive understanding of these legal and insurance principles is indispensable for all stakeholders in the construction sector to mitigate risks and safeguard professional indemnity insurance coverage.

The Implications of the Building Safety Act 2022 on Competence Registration and Professional Indemnity Insurance in the Construction Industry: A Legal Analysis

I. Introduction

The Building Safety Act 2022 introduces significant changes to the regulatory landscape governing construction activities, impacting dutyholders previously governed by the Construction (Design and Management) Regulations 2015 (CDM Regulations). This paper aims to analyze the legal implications arising from the transition of competence registration from the Institute of Construction Management (ICM) under the CDM Regulations to the Building Safety Act 2022.

II. The Institute of Construction Management Trademark and CDM Competence Registration

In 2018, the ICM secured a UK Trademark for the registration of CDM competence. This trademark, established under the CDM Regulations, granted the ICM exclusive rights to assess and certify competence related to construction design and management. However, with the enactment of the Building Safety Act 2022, dutyholders now face new obligations, necessitating a reevaluation of existing competence registrations.

III. The Legal Principle: Lawful Act Cannot Be Created Out of Underlying Illegality

The legal maxim that a lawful act cannot be created out of some underlying illegality is a fundamental principle of UK law. This principle underscores the necessity for legal processes to adhere to established norms and regulations. As dutyholders transition from the CDM Regulations to the Building Safety Act, there is a potential legal quandary if competence registration is not appropriately recognized under the new regime.

IV. Caselaw and Legal Precedents

Caselaw supports the notion that rights established under one regulatory framework may not seamlessly transfer to a new legislative regime. In Fisher v. Bell [1961] 1 QB 394, the court emphasized the importance of complying with the formal requirements of legislation for a contract to be valid. Similarly, in Taylor v. Caldwell [1863] EWHC QB J1, the court held that a contract could be discharged if performance was rendered impossible by a supervening event.

These cases highlight the legal principle that adherence to statutory requirements is crucial for the validity of rights and obligations.

V. Warning to New Organizations Registering Competence under the Building Safety Act

Organizations seeking to register competence under the Building Safety Act should exercise caution and recognize the potential legal pitfalls associated with the transition. The ICM's trademark under the CDM Regulations does not automatically confer the same rights under the Building Safety Act. The failure to obtain recognition under the new regime may jeopardize the legality of competence assessments and certifications.

VI. Impact on Professional Indemnity Insurance Cover

The potential non-recognition of competence registration under the Building Safety Act may have far-reaching consequences for professional indemnity insurance cover. Insurers may assess the validity of competence certifications as a factor in determining coverage. Dutyholders relying on outdated or unrecognized certifications may find their professional indemnity insurance compromised, exposing them to increased liability.

VII. Reference to Contract Law

In the realm of contract law, dutyholders must be aware that contractual obligations may be contingent upon compliance with relevant statutory requirements. Failure to fulfill obligations under the Building Safety Act could constitute a breach of contract, leading to legal ramifications.

VIII. Conclusion

In conclusion, organizations registering competence under the Building Safety Act must recognize the legal implications of the transition and seek appropriate recognition from relevant authorities. The failure to do so may not only result in non-compliance with legal obligations but may also compromise professional indemnity insurance coverage. As dutyholders navigate this legal landscape, adherence to statutory requirements and recognition from competent authorities remain paramount.

Note: This legal analysis is for informational purposes only and does not constitute legal advice. Dutyholders and organizations are encouraged to seek legal counsel to address their specific circumstances.

TRADEMARK INFRINGEMENT

Let's consider how would professional indemnity insurance policy cover for CDM 2015 Competence be affected by an accreditation of competence provided by a registration body that is committing an infringement on Trademark Number UK00003314886 registered to the ICM or any other licences 

Professional Indemnity (PI) insurance is crucial for professionals in various fields, including architects, contractors, and engineers. It provides protection against legal claims arising from negligent acts, errors, or omissions in their professional services. However, the introduction of the Construction (Design and Management) Regulations 2015 (CDM 2015 Regulations) has implications for PI risk in the construction industry¹. 

Now let's go on to explore how the accreditation of competence and trademark infringement might impact PI insurance coverage under the CDM 2015 Regulations: 

1. CDM 2015 Regulations and PI Risk: 

• The CDM 2015 Regulations emphasize health and safety coordination among three primary parties: clients, designers, and contractors. 

• Key changes include: 
• Worker Competence: All projects must have workers with the correct skills, knowledge, training, and experience. 
• Principal Designer and Principal Contractor: Build projects involving more than one contractor require a principal designer responsible for the pre-construction phase and a principal contractor responsible for the construction phase. 
• Health and Safety File: A health and safety file outlines safe procedures and site cleanup. 
• Commercial clients must provide pre-construction information to designers and contractors, ensuring compliance with responsibilities and duties¹. 

2. Statutory Acquiescence and Trademark Infringement: 

• Statutory acquiescence is a defense against trade mark infringement. It prevents the owner of an earlier trade mark from challenging a later registered trade mark after five years of acquiescence. 

• The five-year period starts when the earlier trade mark owner becomes aware of the use of the later trade mark and its registration, regardless of actual knowledge of registration. 

• The policy reason for this defense is to penalize rights holders who are insufficiently vigilant in stopping the use of later trade marks. 

• Monitoring registries and taking prompt action against infringing trade marks is essential for trade mark owners. 

• The distinction between knowledge of use and knowledge of registration is nuanced but impactful⁵. 

3. Case Example: 

• In the case of Industrial Cleaning Equipment v Intelligent Cleaning Equipment, the Court of Appeal clarified that the five-year period for statutory acquiescence starts when the earlier trade mark owner becomes aware of the use of the later trade mark and its registration, even if the owner lacks actual knowledge of registration. 

• Requiring knowledge of registration would discourage rights holders from consulting the trade mark register, contrary to the purpose of having a public register⁵. 

4. Accreditation of Competence and PI Insurance: 

• If an accreditation body grants competence to a professional, it may positively impact their PI risk. 

• However, if the accreditation infringes on a registered trade mark (e.g., UK00003314886), it could lead to legal disputes. 

• Professionals should ensure that their accreditation does not violate any existing trademarks or licenses. 

• PI insurers may consider the professional's accreditation and any associated risks when underwriting policies. 

In summary, professionals in the construction industry should stay informed about changes in regulations (such as CDM 2015) and monitor trade mark registries. Accreditation of competence can enhance their PI risk profile, but they must also avoid infringing on existing trademarks or licenses^{1 5}. 

Source(s) 

1. Construction Industry – Professional Indemnity Cover Under CDM 2015 

2. Trade Marks: Court of Appeal clarifies knowledge requirement for ... 

3. Professional Indemnity Insurance - CDM Contract Services 

4. How CDM 2015 Regs could affect Professional Indemnity Risk - Hensure 

5. The Principal Designer's Handbook: Guide to the CDM Regulations 2015 ... 

6. UNITED KINGDOM: Court of Appeal Confirms Knowledge Requirement for ... 

7. Overview of United Kingdom Trade Mark Cases 2021 

8. Court of Appeal diverges from CJEU | Gowling WLG 

9. Search for a trade mark - GOV.UK