Posted By Robert K Lewis
Just wanted to bounce around a problem with the PC going into administration prior to handing over main H&S file information. Essentially PC employs 20 subcontractors and goes into administration before practical completion and handing over any file information to the CDMC. Subcontractors are not paid by PC and refuse to hand over file information to client without further payment i n full of the value of their works. Client has already paid PC nearly in full but this is held by the administrator.

Who does the client hold responsible for the providing the information and how can he enforce his request.

Have some thopughts but would value others to see if there are some novel means of getting what we want.

Bob

Posted By Tabs
This is contract law in my opinion. Some contracts have property remaining with the provider until paid, other contracts have property transferring on partial payment, and impose same on subsequent contracts.

You need a lawyer.

Posted By Martyn Hendrie
If we take a step back to the legal basics

The requirement for contractors and PC to provide the H&S file information (promptly) comes from the CDM regulations and is a criminal law duty.

The liquidator acting for the company must still ensure the company meets its criminal law duties. (Until the company is liquidated)

Contractors must still meet their criminal law duties (irrespective of whether they have been paid for their services) Their CDM duty is to provide relevant information for the file (promptly).

As you cannot contract out of a criminal law duty,legally I don't see an issue. How you get it to work in practice is a lot harder.

Hope this helps

Posted By Phil Rose
I reckon Tabs is right. Contract law!

Posted By Raymond Rapp
I agree that the Administrator owes a duty to statutory law and specifically CMD Regs. However, all those sub-contractors need to do is stall with the information until the company is wound up. Unless a deal can be brokered with the Administrator and sub-contractors, assuming there are any funds left in the pot after paying out the receivers!

The CDMC can be an individual or an organisation. As rule on large projects it is the organisation, which may not be of much help in this scenario.

Posted By Arran Linton - Smith
Bob,
As you are aware I have been in the position where the Client has gone into administration, but not the PC.

My assessment is the administrator is clearly the PC and whilst they clearly have a duty to co-operate with the CDM-C in providing much of this critical information, if the sub-contractors have not been paid, then they are hardly going to co-operate with the administrator if they have not been paid and they are also (potentially) being forced into administration.

My experience is that administrators are not interested in any of the aspects of CDM unless it prevents them liquidising an asset such as a building. In our case we had the task of explaining to a very large accountancy practice that there was many months of work required preparing a H&S file from scratch as there were no ‘as built drawings’ or critical calculations etc. In our case it was unlikely that we would be paid, so we immediately resigned as CDM-C

Unless the HSE are prepared to serve a statutory notice on the administrator, I think that it is unlikely that you are likely to see any of your requests for information answered and you are going to have a frustrated client.

Posted By Simon Priest
Morning All,

Bob, has the Administrator been appointed by the Client?

If not, then why do they carry any duty under CDM?

Simon

Posted By Simon Priest
Very interesting,

Bob, if the PC is no longer adequately resourced, competent to do so, then what?

Simon

Posted By Robert K Lewis
Simon

The administrator is now the director, legally, of the PC organisation and is thus under a duty surely to ensure compliance with statutory provisions as they affect the company. In taking on the company s/he takes on all contracts and debts and credits of the contractor.

Bob

Posted By Crim
Aquiring information for the health and safety file is and has always been the worst part of CDM, made ever more difficult in this instance.

I wonder if, the next time CDM is up for revue, this aspect of the regs could be made tighter with more responsibility, and possibly some form of punishment on those who do not conform.

I agree with those who say it is contract law and the info must be provided, after all CDM does not mention payment for following duties under the regs.

Robert I do not envy you.

Posted By EI
Bob

must be a nightmare!! Agree with some of what has already been stated. End of the day to the provision of information for the file Criminal law although it may overlap with the contract law side. The concept of "I wasn't paid so I broke the law"...........don't think that dog will hunt with the man in the wig. Problem you have is chances of it being taken down the breach of CDM track is remote if not non existent. Think you may have a long, rocky road ahead.

1 potential avenue springs to mind. Are you CDMC because you work for a consultancy? If so, do these contractors work for other clients you represent? If "YES", you may have an argument that whilst you are sympathetic to the contractors situation, your experience with non compliance with specific duties under CDM may need to be considered if future enquires are made on competence and resources. Long shot - not fair on the contractor - but Law is there for a reason.

EI

Posted By EI
Hi Bob

don't know if it is a case of the HSE being unwilling to look at this type of issue. Think it is a case of HSE priorities. Without doing a search to confirm my thoughts, I can't recall reading a case of a prosecution for failing to provide information for the file. Can see cases of this being brought many years down the road if it is found that the lack of essential H&S file information is a major contributory factor to a serious event. Have you asked your local HSE office for advice or assistance? Again, it must be a nightmare for you but reality, if I read your thread correctly, administrators in - building not yet handed over/complete - no breach yet as H&S File not needed - no end user.

If I was in your shoes and you know of the contractors on other projects under tender that you have influence, I would indicate how it would influence my decision when advising the Client on competence and resources. Not really fair, but I think you need to use any tool at your disposal.

Regards
Ian