27 minute read
Legal View
This time out our Legal View article comes from Mary Smith, (partner), and Stephen Boyle, (paralegal), of Caytons. They turn their attention to the Construction Industry Register Ireland (‘CIRI’) in this comprehensive and informative overview!
Promoting contractor competency with the CIRI
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What is the CIRI? The Construction Industry Register Ireland (‘CIRI’) is an o cial voluntary register of competent builders, contractors, specialist sub-contractors and tradespersons (collectively defined as ‘contractors’ in this article) who undertake construction works.
The CIRI was established in July 2014 and is open for applications. It was developed by the Construction Industry Federation with support from the Government.
It is currently governed by the CIRI Admissions & Registration Board, who consist mainly of registered construction professionals from various sectors of the industry.
Its operators confirmed to us that there are 700 registered members currently on the register.
This register is a similar model to that of registration for Registered Architects and Surveyors.
Accreditation
Its main purpose is to provide those operating within the construction industry with competency accreditation.
As such, consumers can freely access the register to find a competent and compliant contractor which has passed certain pre-registration checks, that otherwise may not exist for contractors not currently on the register.
It ties in nicely with the Building Control (Amendment) Regulations 2014 which obliges clients to appoint competent and compliant contractors, builders, and specialist construction contractors and as such, the CIRI acts as a tool to tick box this obligation.
The registered title is a professional designation granted to a contractor who meets these onerous requirements as outlined by the current CIRI Admission and Registrations Board.
currently on the register. the Building Control (Amendment) Regulations 2014 which obliges clients to appoint competent and compliant contractors, builders, and specialist construction contractors and as such, the CIRI acts as a tool to tick box this obligation. professional designation granted to a contractor who meets these onerous requirements as outlined by the current CIRI Admission and Registrations Board.
Strict
Becoming a registered contractor means that contractor means that the contractor has been subjected to a strict review process to obtain the designated registration category under the register. category under the register.
The application process is an extensive system of is an extensive system of checking contractors to checking contractors to make sure they meet the basic requirements regarding health and safety, insurance, health and safety, insurance, financial clearances, project financial clearances, project references, qualifications, and references, qualifications, and experience of key personnel. experience of key personnel.
Then once on the register, contractors must cover 4 main pillars of annual CPD, one of which are Building one of which are Building Regulations. These checks Regulations. These checks must be met afresh on must be met afresh on every annual renewal. every annual renewal.
A statutory structure
Earlier this year, the Government announced new changes to the CIRI with the focus of enhancing compliance within the compliance within the construction sector. construction sector.
The Regulation of Providers of Building Works and of Building Works and Miscellaneous Provisions Act Miscellaneous Provisions Act 2022 (‘the Act’) was enacted 2022 (‘the Act’) was enacted in July 2022 and this Act in July 2022 and this Act will replace the voluntary will replace the voluntary register with a statutory one. register with a statutory one.
On 29 August 2022 a Commencement Order for Commencement Order for the general provisions of the the general provisions of the Act was passed with notable Act was passed with notable exclusions covering Part 4 exclusions covering Part 4 (Register and Competence (Register and Competence Criteria) and Part 5 Criteria) and Part 5 (Registration and Practice). (Registration and Practice).
There is no date yet for commencement of for commencement of these sections. However, these sections. However, it is proposed that the first it is proposed that the first category (both home and category (both home and commercial builders) can commercial builders) can begin registering under the begin registering under the Act with the CIRI in 2023 Act with the CIRI in 2023 with mandatory registration with mandatory registration expected in early 2024. expected in early 2024.
While the CIRI is now open for voluntary registration for voluntary registration this is under the current this is under the current system rather than under system rather than under the Act. The Act also the Act. The Act also maintains the CIRI title. maintains the
Good practice
The main objective of the Act is to advance a culture of good practice, competence, and compliance with Building Regulations throughout the Irish construction industry.
The Act provides for the appointment of a fair and appointment of a fair and independent registration body and registrar to be responsible for the day-today running of the register. day running of the register.
The Act applies to all providers of building works providers of building works with ‘works’ meaning works with ‘works’ meaning works to which the building to which the building regulations or building regulations or building control regulations apply. control regulations apply.
An employee of a provider of building works is not a of building works is not a provider of building works. provider of building works.
Key provisions of the act of the act
Part 3: provides for the establishment of an Admissions and Registration Board and an Appeals Committee. Ministerial Committee. Ministerial appointees will constitute appointees will constitute a majority of the Board a majority of the Board and Committee. and Committee.
Under the Act those appointed must have appointed must have at least expertise and at least expertise and knowledge in one or more knowledge in one or more areas of construction, areas of construction, as set out in the Act. as set out in the Act.
Also, because of prelegislative scrutiny before the legislative scrutiny before the passing of the Act, there is passing of the Act, there is also a safeguard obligatory also a safeguard obligatory provision that the Board and Committee members and Committee members shall be independent in the shall be independent in the performance of its functions. performance of its functions. Part 4: establishment of the statutory CIRI Register and sets out the competence criteria required for contractors
Part 4: provides for the establishment of the statutory CIRI Register and sets out the competence criteria required for contractors to be eligible to register.
This criterion is determined
by the Board and eligibility is based on an assessment of the contractor’s level of educational qualification or practical experience or a combination of both.
There is also a section providing for an equivalent competence criteria base for registered members from other countries to protect against discrimination of builders coming from other countries to tender for works here.
This section also sets out the list of details that the Register shall contain in relation to each registered entity, which includes any penalties and o ences handed down under the Building Control Act 1990.
In the event of legal proceedings (presumably involving a registered or unregistered contractor) the Act states that a member of the Board can furnish a certificate stating that contractor is, or is not, or was at one time, on the statutory register and this will constitute prima facie evidence of this fact.
A party to proceedings could obtain such a statutory certificate to demonstrate a situation where a contractor or tradesman was suspended or not on the Register at a given date in time to prove that a standard of competency was not met.
On the other hand, a contractor could obtain this certificate to prove in its defence that it has the level of competency as required under the Act and/ or the Building Control (Amendment) Regulations to defend allegations which may suggest otherwise.
The register is also divided into di erent divisions for each of the di erent categories of works.
As such it is for a contractor to meet the competency criteria in respect of each division for which it is registered.
That said, the Act provides for scope for a registered contractor to rely upon a specific employee as a ‘competent person’ who fulfils the competence criteria relating to a certain division of works, if the contractor wishes to become registered in another division (or category say).
If the specific employee leaves the employment of the contractor, then there are obligatory time notice provisions in the Act that must be followed by the contractor.
There are also useful provisions that enable a
contractor to rely on its subsidiaries to fulfil the competency criteria and register in other divisions.
Part 5: provides for the operation of the CIRI and significantly prohibits any unregistered contractors from operating in construction.
This also includes a ban on contractors providing building services in a category in which they are not registered.
It is an o ence to contravene this prohibition. As such, if contractors are not on the register by early 2024 (assuming it comes into e ect then) then they simply cannot trade.
Part 5 of the Act also outlines the application process, the requirements for first registration and renewal. Like the current system, renewal is not automatic, and the contractor must go through a fresh onerous application process.
The contractor must furnish evidence that it holds the minimum levels of insurance as required under the Act (see below for more on this).
The application for registration both at the outset and renewal includes an obligation on the contractor to furnish a written statement confirming (amongst other things) whether the contractor applicant complies with the
Building Regulations and Building Control Regulations.
If the contractor becomes aware of any ‘material matter’ that changes the information furnished in the registration application, then it must notify the registration body as soon as practicable and no later than 30 days.
An adverse court judgment that a contractor was in non-compliance with the Building Regulations could well constitute a ‘material matter’ that must be notified.
This in turn could negatively impact upon registration and ultimately the ability to operate/trade.
Section 43 provides that the registration body will specify the minimum levels of insurance that the contractor must hold.
This applies only to public liability and employer’s liability policies.
This section lists the criteria the registration body will have regard to when specifying these minimum indemnity levels.
This includes regards to the level of risk generally inherent in the specific category of works, the level of risk that insurers associate with the category of works (this will require consultation as between underwriters and the registration body established under the Act) as well as the level of awards/ settlements from proceedings relating to causes of action from allegations of breaches of duty involving registered contractors involved in that category of works.
Part 6: provides for the handling of complaints, investigations and sanctions in respect of the registered contractor.
A complaint may be made in writing concerning any one of a number of grounds (referred to as ‘improper conduct’).
One such ground includes complaints against a contractor providing building services in a category in which they are not registered.
Contractors and their employees will have to be very careful to avoid finding themselves unassumingly getting into other aspects of work on site if they are not registered in this specific area of work.
for scope for a registered contractor to rely upon a specific employee as a ‘competent person’ who fulfils the competence criteria relating to a certain division of works, if the contractor wishes to become registered in another division (or category say). leaves the employment of the contractor, then there are obligatory time notice provisions in the Act that must be followed by the contractor. provisions that enable a first registration and renewal. Like the current system, renewal is not automatic, and the contractor must go through a fresh onerous application process. furnish evidence that it holds the minimum levels of insurance as required under the Act (see below for more on this). registration both at the outset and renewal includes an obligation on the contractor to furnish a written statement confirming (amongst other things) whether the contractor applicant complies with the
contractor to rely on its subsidiaries to fulfil the competency criteria and register in other divisions.
Part 5: the operation of the CIRI and significantly prohibits any unregistered contractors from operating in construction. on contractors providing building services in a category in which they are not registered. contravene this prohibition. As such, if contractors are not on the register by early 2024 (assuming it comes into e ect then) then they simply cannot trade. outlines the application process, the requirements for Building Regulations and Building Control Regulations. aware of any ‘material matter’ that changes the information furnished in the registration application, then it must notify the registration body as soon as practicable and no later than 30 days. that a contractor was in non-compliance with the Building Regulations could well constitute a ‘material matter’ that must be notified. negatively impact upon registration and ultimately the ability to operate/trade.
Section 43 the registration body will specify the minimum levels of insurance that the contractor must hold. liability and employer’s body will have regard to when specifying these minimum indemnity levels. inherent in the specific category of works, the level of risk that insurers associate with the category of works (this will require consultation as between underwriters and the registration body established under the Act) as well as the level of awards/ settlements from proceedings relating to causes of action from allegations of breaches of duty involving registered contractors involved in that category of works.
handling of complaints, investigations and sanctions in respect of the registered contractor. made in writing concerning any one of a number of grounds (referred to as ‘improper conduct’). complaints against a contractor providing building services in a category in which they are not registered. employees will have to be very careful to avoid finding themselves unassumingly getting into other aspects of work on site if they are not registered in this specific area of work.
Review
After a complaint is received, the Registrar will received, the Registrar will review it to ascertain if it is made in good faith or if it is without substance, lacking information or frivolous and vexatious.
The Registrar may decide that the complaint could be resolved by mediation.
If the Registrar is of the view that the complaint
LEGAL VIEW
has substance, then it will refer it onto the Board for investigation following which an inspector is appointed.
An investigation report is produced at the end of the investigation stating whether the inspector is satisfied that there has been improper conduct or not.
The appointed inspectors have wide ranging powers under the Act including the power to enter and search any premises of a contractor under investigation.
Imposed
Minor or major sanctions can be imposed by the Board following receipt of an investigation report that finds improper conduct.
Oral hearings may also be conducted by the Board if it considers it necessary.
A major sanction could be removal or suspension from the register as a whole or a division thereof thereby banning the contractor from operating.
Confirmation from the High Court is required before a decision to impose a major sanction takes e ect.
Importantly, the Act provides (in Part 7) that all complaints, investigations, inspector reports under the Act and made to the inspector, the Board or appeals committee and associated documents and communications are absolutely privileged.
This means that these issues cannot be disclosed and relied upon as evidence in court proceedings. Part 7 also provides for the publication of sanctions and convictions and provision for o ences and penalties.
Why was a statutory register chosen?
The statutory register was chosen as it is expected to help develop and promote a culture of competence, good practice and compliance with Building Regulations, to address rogue builders and shadow economic activity in the construction sector and to ensure fairer competition for compliant operators.
The purpose of the CIRI register is to promote safe and compliant work practices that consumers can rely on with confidence.
The CIRI registered contractors can be
confident that customers they are dealing with view them as highly skilled and experienced, and only contractors that meet the strict eligibility criteria are registered on CIRI.
address rogue builders and shadow economic activity in the construction sector and to ensure fairer competition register is to promote safe and compliant work practices that consumers can rely on with confidence. contractors can be • Members can are registered • The complaints registered including in • If a and registration • The effectively shoddy it • A competency of • Any imposed prior
confident that customers they are dealing with view them as highly skilled and experienced, and only contractors that meet the strict eligibility criteria are registered on CIRI.
Key takeaways
• Contractors already included on the CIRI or equivalent may be regarded as competent for the purposes of the Building Control (Amendment) Regulations for projects consistent with their registration profile. • The CIRI will be a mandatory register from early 2024 of competent builders, contractors, specialist sub-contractors and tradespersons in the construction industry • If a contractor is not on the register, then it will be prohibited from trading • Employees of contractors will not be required to apply but sole traders will • Eligibility for registration can be achieved through experience, qualifications, or a combination of both • Members of the public can now go online and are free to search for registered contractors • The Act will provide for the CIRI to receive complaints against registered contractors, including complaints against a contractor providing building services in a category in which they are not registered • If there is an issue with a contractor’s quality and compliance, then it may not get its registration renewed • The CIRI should effectively blacklist shoddy contractors once it becomes mandatory • A certificate of registration will be proof of competency in the division of works to which it relates • Any major sanctions imposed will require prior confirmation from the High Court
• The • If • Employees • Eligibility • Inspectors • Inspectors will have wide ranging powers under the Act • All • All complaints and investigations made under the Act will be privileged
What gets measured gets improved gets improved
Mandatory statutory regulation is necessary to protect the public from the risks posed public from the risks posed by defective buildings such by defective buildings such as the boom to bust housing as the boom to bust housing defects and the legacies of defects and the legacies of poor construction design, poor construction design, workmanship and materials. workmanship and materials.
Improving and promoting a culture of good building a culture of good building practice, competence practice, competence and compliance with the and compliance with the Building Regulations will Building Regulations will greatly benefit consumers, greatly benefit consumers, those operating within those operating within the construction industry the construction industry and the public at large. and the public at large.
This register will mandate that contractors can only that contractors can only take on work that they are take on work that they are competent to complete and competent to complete and registered to undertake. registered to undertake.
This register will help restore trust and confidence restore trust and confidence to the industry and its to the industry and its consumers and improve consumers and improve quality and standards in the quality and standards in the construction environment construction environment such that the risks of such that the risks of repeating the mistakes repeating the mistakes of the past should be of the past should be substantially decreased. substantially decreased.
These measures are another welcome step for another welcome step for improving standards and improving standards and minimising risks in the Irish minimising risks in the Irish construction industry. construction industry.
Mary Smith Partner, Caytons Stephen Boyle Paralegal, Caytons
Caytons is a provider of specialist insurance and construction legal services. This material is provided for informational purposes only and does not constitute legal advice.
LEGAL VIEW
Henry Hathaway is a solicitor who practices in both Ireland and England and Wales and specialises in construction law. In this special edition of CMi he addresses a very significant topic…
The ability to apply the construction contract to avoid disputes
In the past number of years there has been a significant number of articles and papers written in relation to
Adjudication in Ireland.
By all accounts this method of dispute resolution is certain to follow the success of Adjudication in the UK having been in place since 1996.
There is an abundance of case law
There is an abundance of case law now in place to reference and the current authorities in Ireland have lent weight to the propensity towards enforcing an adjudicator’s decision except in the most limited of circumstances.
That along with the appropriate procedures to follow in order to enforce are now well settled and ultimately adjudication in Ireland has the necessary teeth through enforcement.
There have been a number of cases now in Ireland and are well worth referencing such as Aakon Construction Services Limited v Pure Fitout Associated Limited No.1 [2021] IEHC 562 or Principal Construction Limited v Beneavin Contractor’s Limited [2021] IEHC 578.
There is an underlying concept within adjudication whose purpose is to improve cash flow within the industry which is to ‘pay now, litigate later’.
This has been a successful aspect and there is little doubt that the timelines and costs are significantly lower than resorting to other dispute resolution proceedings be it arbitration or legal proceedings.
Whilst the above is very much welcome, it is in respect of dispute resolution and invariably when the issues have arisen and the proverbial horse has bolted.
Associated Limited No.1 [2021] IEHC 562 or Principal Construction Limited v Beneavin Contractor’s Limited [2021] IEHC 578. concept within adjudication whose purpose is to improve cash flow within the industry which is to ‘pay now, litigate later’. aspect and there is little doubt that the timelines and costs are significantly lower than resorting to other dispute resolution proceedings be it arbitration or legal proceedings. much welcome, it is in respect of dispute resolution and invariably when the issues have arisen and the proverbial horse has bolted.
However
However, clearly the aim for any contracting parties must be to avoid disputes in the first place.
It is well regarded that disputes in general in construction lead to costs, uncertainty of outcome, financial losses and can be financial losses and can be an unpleasant experience. an unpleasant experience.
Many of the disputes be they in Adjudication, Arbitration or legal Arbitration or legal proceedings that the reader proceedings that the reader will have acted in are borne from the potential initial from the potential initial agreement between the agreement between the parties in the first instance. parties in the first instance.
The party who have an inherent culture towards inherent culture towards certainty of terms or dispute certainty of terms or dispute avoidance will invariably avoidance will invariably wish to avoid disputes wish to avoid disputes in the first instance. in the first instance.
As a concept, dispute avoidance is quite obvious avoidance is quite obvious and entering into a dispute and entering into a dispute ought to be the last resort ought to be the last resort as opposed to the first. If the as opposed to the first. If the concept is straightforward concept is straightforward and obvious, then why is and obvious, then why is it so di cult in practice? it so di cult in practice?
There are a number of steps
There are a number of steps that can be taken, steps that can be taken, however, firstly, the parties must concentrate on the contract or agreement in the first place and before works commence.
In every dispute, the question at the forefront will be, whether the parties had an agreement and if so, what terms were incorporated.
This is the starting point and if an agreement has and if an agreement has been reached, what did the been reached, what did the parties intend to do and how parties intend to do and how were such terms recorded.
A strong contract (whether bespoke or standard form) bespoke or standard form) will capture what the will capture what the parties are to perform and parties are to perform and how the conduct of the how the conduct of the performance is to progress. performance is to progress.
Most disputes occur when there is ambiguity when there is ambiguity either on the scope of either on the scope of works or what in fact is works or what in fact is contained within the works. contained within the works.
The next point is to engage with the contract terms with the contract terms and to understand them. and to understand them.
The times of signing a contract and leaving it to contract and leaving it to one side until a dispute one side until a dispute arises must cease. arises must cease.
In many instances the writers’ clients will have the essential terms of the contract summarised and explained in straightforward fashion to the sta who are to carry out the works.
In those circumstances, the sta have had briefings and training and can comply with what is required and understand risk and liabilities under the contract.
I often refer to the case of RTS Flexible Systems Limited v Molkerei Alois Muller Gmbh & Company KG [2010] UKSC 14.
Highlights the pitfalls
This was a Supreme Court case in the UK which highlights the pitfalls of not having a properly particularised agreement in place.
This is a decision which centred on a Letter of Intent and the terms. E ectively, having not had the precise terms recorded, this matter passed through a number of courts which led to undoubtedly significant costs.
Paragraph 1 of the judgement set the issue clearly when it stated: ‘The di erent decisions in the courts below and the arguments in this court Henry Hathaway is a solicitor who practices in both Ireland and England and Wales and specialises in construction law. He is a qualified civil engineer and spent 12 years working in the industry. He regularly advises on contract formation and provides practical advice when entering construction contracts and regularly provides training and seminar days to companies to assist knowledge and application in order to assist them in avoiding disputes in construction. If you require further information in relation to contract formation or would like to discuss training and development in this area, contact henry.hathaway@hathawaysolicitors.ie.
demonstrate the perils of demonstrate the perils of beginning work without beginning work without agreeing the precise basis agreeing the precise basis upon which it is to be done.’ upon which it is to be done.’
The key message must be that in an environment be that in an environment where adjudications are where adjudications are becoming more popular becoming more popular and are being enforced and are being enforced but for minor exceptions, but for minor exceptions, then the onus ought then the onus ought to be for construction to be for construction companies to avoid these companies to avoid these proceedings unless required proceedings unless required to engage as a last resort. to engage as a last resort.
There are clear good reasons for a company to reasons for a company to adopt a dispute avoidance adopt a dispute avoidance mentality which as a topic mentality which as a topic is larger than this article is larger than this article can particularise fully. can particularise fully.
However, whatever the case, be it in formal the case, be it in formal dispute resolution and/or dispute resolution and/or negotiations, the key issue negotiations, the key issue and starting point will be to and starting point will be to ensure that the agreement ensure that the agreement contains the necessary terms contains the necessary terms which may be required to be which may be required to be relied upon at a later stage. relied upon at a later stage.
This is the first and perhaps most important perhaps most important stage in order to adopt a stage in order to adopt a dispute avoidance ethos dispute avoidance ethos and potentially save on and potentially save on costs in the future. costs in the future.
spotlight on: pipelife
Pipelife Eco – ‘Ireland’s #1 Supplier of Eco Heating Solutions’
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Everyone
The Pipelife Eco team works with everyone from homeowners, contractors, architects and consulting engineers across the country in projects ranging from residential homes, offices, hospitals, nursing homes, to warehouses, car showrooms and other commercial and industrial buildings.
Pipelife has recently launched a new Home Heating Solutions website that outlines all the different heating options available to heat a home.
The website explains in detailed 3D videos the different types of heating systems in the simplest way possible so homeowners and installers can make the most informed decision about the type of system that will work best for their needs.
Important
Padjoe Barry, national sales manager, comments: ‘Building a house can be quite daunting and within that the heating system that is chosen for a home is one of the most important investment decisions a homeowner will make.
‘Heating your home represents the largest annual running cost you will have in ensuring your family’s comfort over many years.
‘The heating system you choose and the supplier you choose to provide it are decisions that will impact on you for decades to come.’
Learn
The purpose of the website is to give homeowners, but also installers, a point of reference that they can send their customers to, to learn about the different heating systems available, the pitfalls to watch out for, the quality of all the components used in your heating solution is critical to its long successful operation, and the recommended system the Pipelife would recommend.
At Pipelife Eco we believe in providing our customers with a one stop-shop
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Multiple package solutions design service
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Our Renewables Division covers every aspect of underfloor heating and integrated renewables and deliver fully designed, energy efficient systems to a range of Installers, Developers, Builders, Engineers & Architects.
We have a proven track record of twenty years’ service and commitment to the industry backed by exceptionally trained staff and a dedicated technical backup service.
Whether you’re building a new house, adding an extension or renovating your home, we can help you find the right system for your project.
Critical
As Underfloor Heating is now the most common method of heating homes in Ireland today it is important to note that the most critical component of an underfloor heating system is the pipework that will be buried in the concrete floor of your home.
Once installed, this pipework will be encased and inaccessible for the lifetime of your home.
Any problems associated with this pipework would entail the floor of your home being dug up causing massive disruption.
It is critical that all components used, but especially the pipework, are top quality and fully backed by reputable manufacturers.
Pipelife is the only supplier that manufactures its own specialised underfloor heating pipe in Ireland.
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Rest assured
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The nationwide Pipelife Eco team of experienced design and technical service engineers always provides complete support to installers to ensure successful completion of Pipelife ECO projects.
Pipelife is a company with annual revenues of €1bn a year. We operate in twenty-eight countries and employ 3,000 employees in twenty-eight manufacturing locations.
Pipelife is a wholly-owned subsidiary of the Wienerberger Group, with group revenues of over €4bn per year and 16,000 employees worldwide.
Strength
This long history plus the financial strength of Pipelife is the best guarantee we can offer you that we will be there to support our products over the long lifetimes expected of those products.
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