Lawyers slam DoE liability plan

LAWYERS have universally rejected a proposal to introduce a “sole liability” rule for construction projects which suffer from inherent building defects.

City firms, the Law Society and the Bar roundly condemned the idea in a consultation exercise by the Department of the Environment.

The exercise aims to produce a set of clauses governing how claims over “latent defects” are made under a new Construction Contracts Bill and on suitable insurance cover for projects.

Proposals were based on a series of recommendations from a working party headed by Sir Michael Latham.

Legal bodies said in their submissions on replacing “joint and several” with sole liability that litigation would increase and clients of building firms would have reduced rights.

They also suggested that any changes should only be introduced after the Law Commission has examined the current system.

Karen Aldred, of the Law Society, says that there is strong opposition to the measure throughout the profession and recommended the commission review.

The Bar denied that joint liability led to litigants always taking action against the most wealthy party, regardless of their liability.

McKenna & Co's submission said: “While a move to sole liability would have advantages in principle, it would be unlikely to simplify or speed up the litigation process.”

It goes on: “As a result of these changes the burden would fall most heavily on the plaintiff, potentially increasing the case for compulsory insurance.”

Nabarro Nathanson said it would make the pursuit of legal remedies “more time-consuming, costly and complex”. The firm added that clients, developers and purchasers would lack the ability to fully recover the cost of repairing defects where there are other parties involved not worth pursuing.

Denton Hall's comments said the distinction was only important if one of the liable parties becomes insolvent.

Robert Jones, Minister for Construction and Planning, says: “The responses will be taken into account in making decisions on future legislation.”