Good Afternoon,

Can someone tell me what takes precedence - a signed contract or current legislation?

A client of ours has written a clause in a contract with us which makes us, as the Principal Contractor, responsible for carrying out a certain task, our Commercial team has just accepted this clause and the contract is now signed and sealed. 

However, current legislation (in this instance it is CDM2015) defines that Principal Designer as being responsible for the task!

I have pointed this out to the Client and he has come back and said "Yeah, we know that but you have now signed the contract so the responsibility now lies with you!"

In the event of a failure on our behalf to complete the task, would we have a valid defence in that the PD cannot pass on responsibility under current legislation?

Thanks very much for your help

As far as I understand CDM the law requires that the Client either appoints a Principal Designer or takes on the responsibility for themselves. There is nothing in CDM to prevent them appointing the same people as both Principle Contractor and Designer. They can also draw up a contract saying as much. The real question is: did you agree to the terms of the contract appointing you as a Designer? If you did you might be stuck with the role unless you can prove that you are not competent to deliver on this role.

Thanks very much to A Kurdziel and boblewis for taking the time to respond. 

Perhaps my ramblings in my original post weren't as clear as I intended. 

We have not assumed the role of PD in the contract, the Client has appointed another to that role, which is clearly stated within the contract and within the tender documents.

However, the contract has allocated a task to us for which CDM2015 clearly places the obligation onto the PD. My question was whether or not the signed contract takes precedence over current legislation

Looking at CDM, it assumes that there is a package of duties that rest with the Principal Designer. Nowhere does it says that you can spilt these duties up between parties, which is what it looks like your client is trying to do. Unfortunately nether does it say that you cannot split these duties up! I’d say this a legal grey area and it requires a lawyer to look at it. Sorry it’s beyond me!

In the contract, have they delegated a duty that would normally be the PDs or have they wholly appointed you as the PD? Who has been formally named as the PD on the F10 or in contract agreements?

If someone else has been appointed PD, a particular management duty can be given to another dutyholder but only on agreement by all parties and it should be written into the Construction Phase H&S Plan. However, if the legal duty is that of the PD but delegated to a PC, the PD still holds the legal liability for fulfilling that legal responsibility. The PD would still be responsible for ensuring the PC was discharging that duty. From what I have read, actioning of duties can be passed on but legal liability and responsibility cannot.